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White House press secretary Jen Psaki wished her predecessor, Kayleigh McEnany, well in her new role as a Fox News contributor and said she'd be happy to appear with her on the network. (March 2) AP Domestic

Its not the greatest thing for a comedic talk show when your funniest opening-week moment is unintentional.

Gutfeld!,Fox News Channel's newlate-night entry whose conservative/libertarian take sets it apart from talk-show competitors, explored an intriguingtopic on its second night last week: the inability ofsome national mediato get over the departure of former President Donald Trump and the mountain of material and ratings he provided.

So it was LOL funny whenhost Greg Gutfeld turned to critique "post-Trump stress"with the night'smarquee guest: Trumps sonEric. And that was one night after former Trump press secretary Kayleigh McEnany, the new co-host of Foxs Outnumbered, was the premiere episode's big get.

Nowwho is it exactly that can't quit Trump?

Greg Gutfeld gets comfortable on the new set for his Fox News late-night show, 'Gutfeld!'(Photo: Photo provided by Fox News Channel)

Maybe "Gutfeld!" (weeknights, 11 EDT/8 PDT) sees Trump obsession only in terms of those who are critical of the former president.Thatpoints to what may be the biggest contrast between "Gutfeld!" and itslate-night competitors. It's lessabout structure Gutfeld and guests riffing on the newsmore resembles"The View," minus the long desk thanlead-in programming on a network intertwined with Trump and his supporters.

While Stephen Colbert, Jimmy Fallon and Jimmy Kimmel come on after scripted dramas and local news, "Gutfeld!" followsthree hours of Tucker Carlson, Sean Hannity and Laura Ingraham hammering the left. It may be lighter in tone than those shows, but it servesthe same red meat: criticism of the media, liberal cancel culture and Hunter Biden.

As a political chatfest, "Gutfeld!" spends much time rehashing Fox talking points. As comic relief, it's not very funny.

Itslate-night rivals, who range from apolitical/centristto progressive,haven't been all thattough on President Joe Biden or New York Gov. Andrew Cuomo while suffering occasional bouts of embarrassingfawning(See Fallon and "Cuomosexuals"). However, they do makejokesabout both of those Democrats and others.

"Gutfeld!," by comparison, didn't go after right-wing sacred cows, including ahuge Republican target:scandal-plagued U.S. Rep. Matt Gaetz. Of course, "Gutfeld!" viewerswho get all their news from Foxmight not even know Gaetz has a problem.

"Gutfeld!" appears boxed inby its opinion lead-ins, a contradiction for a show that cultivates a subversivetone but a potential path to ratings success.In its first fournights,"Gutfeld!" averaged1.6million viewers, up 400,000 from the hour's previous average with news programming. It outrankedCNN andMSNBC, tiedABC's "Jimmy Kimmel Live" and fell behind onlyCBS' "Late Show with Stephen Colbert"(although bothtalk shows start35 minutes later).

"Gutfeld!" was disingenuous Wednesday when its host, a regular panelist on Fox's "The Five" and host of a former weekend show that is similar to "Gutfeld!,"laid out his credo: The point of this show is to pull you and I out of these destructive 'Us vs. Them'narratives by trying to show you how the media creates false stories to keep us engaged and angry.

That'sa point worth discussing, but it's ludicrous coming from a host on Fox, where Us vs. Them could be thenetworks motto.

Greg Gutfeld hosts the Fox News Channel late-night show, 'Gutfeld!' It premiered April 6.(Photo: Fox News Channel)

Andwhile you'dexpect "Gutfeld!" to tilt conservative, it shouldn't make"Cancel Culture Just Got Cancelled!" its slogan if it's going to ignore intolerance on the right. Perhaps last week'sbiggest attempted cancellationwas Trump's proposed boycottof a broad swath of corporate America Major League Baseball, Coca-Cola, Delta Airlines and others over opposition to the controversialRepublican-passedGeorgia voting law. Kimmel did a fun bit on Trump's statement; nary a word on "Gutfeld!"

At the same time, Gutfeld! presentedmultiple segments targeting baseball and other businesses protesting the new law, which critics say will make it tougher for many to vote.The show's conversation focused more on people being called racist than the actual problem of racism.

If Gutfeld is really committed to hisslogan, hecould take a lesson from HBO's Bill Maher, an old-schoolfree-speech liberal who savages the censorious left as well as the right.

Screen grab from Republican National Convention of Eric Trump speaking.(Photo: Republican National Convention via USA TODAY NETWORK via Imagn Content Services, LLC)

Adifferent political perspective is a goodaddition to late night: The field has showna tepidsameness at times, partly the result of gorging too long at the Trump trough. Establishment politicians and media can be condescending, so a sharp voice willing to puncture pompous egos would be welcome.

Jabs aimed at competitors, from ABCs Kimmel to MSNBCs Brian Williams, are fine a little rough-and-tumble among the media elite is entertaining but Gutfeld needs much better material.

If Gutfeld! takes on topics otherswont, that wouldbe a plus, too. But so far most of thechoices areobvious. Cuomo is easy to mockthese days, andthe program already needs time in comedy rehabafteroverdosing on Hunter Biden drug abuse jokes.

As president, Joe Biden is a necessary comedic target, and theres room for a harder-edged take, but Gutfeld! so far has been weak. An actor impersonating Biden as adodderingold manseemslike an even staler version of whatHannity hasbeen trotting out for months. Colbert, hardly a conservative,did better lastweek commenting on Bidens awkward conversational tangents, which offerplenty of good material.

Kayleigh McEnany will co-host Fox News' "Outnumbered."(Photo: SAUL LOEB, AFP via Getty Images)

A skit Wednesday featuring a faux Jen Psaki taking a Rorschach test, which skeweredthe Biden press secretary's semantic approach to immigration questions,showed morepromise.Thursday's show critiquedmedia coverage of the summer protests that followed George Floyd's death and Democrats' expanding definition of infrastructure,topics likely to receive less commentelsewhere in late night.

Comedy programs take time to gel. Gutfeld has a way with self-deprecating humor and an easyrapport with regulars Kat Timpf and Tyrus, who moved over from Gutfeld's weekendpredecessor series. There was more amusingconversation on some of the less polarizingtopics, such as a report on robotic dogs, but the show needs wittierguests and more focused discussion. Some of last week's rambling discourseshould give "Gutfeld!" pause about mocking old men.

But that's just tweaking around the edges. Gutfeld!, judging by its first week, doesn't seem interested in establishing a distinctivevoice. It seems morecomfortable just being a sheep in Fox clothing.

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'Gutfeld!' review: Fox News talk show lives in glass house when critiquing Trump-obsessed media - USA TODAY

On April 5, Supreme Court Justice Clarence Thomas kicked off a new round of debate on the right way to regulate social media companies with a thoughtful and creative piece of legal scholarship. His key point is that First Amendment review by the courts might very well uphold a state or federal statute that treated social media platforms as common carriers or places of public accommodation and restricted their ability to remove content on their systems based on political point of view. He did this in the form of a non-binding concurring opinion in the Supreme Court decision dismissing as moot a lawsuit against former president Donald Trump over his blocking of some Twitter followers.

Justice Thomas is keyed into much of the ferment among conservatives who feel that tech companies are biased against their perspective. They point to the deplatforming of President Trump in January, following the Capitol Hill riot by his supporters, as a paradigmatic case of political discrimination against the conservative point of view. A proposed Texas law would respond to this perceived bias by treating social media companies as akin to common carriers and prohibiting deplatforming based on viewpoint.

Justice Thomas has, in effect, provided a response to a First Amendment challenge to such a common carriage law. In doing so, he joins critics from the left in stepping outside the libertarian paradigm that gives private companies the unfettered right to decide what is said on the media platforms they operate. He goes to the opposite extreme and says that social media companies should not be treated as speakers at all for First Amendment purposes. Rather, like telephone companies, they should be reconceptualized as neutral, passive conveyors of the speech of others.

This conception of social media companies as common carriers with no or severely restricted speech rights corresponds to the way they present themselves to the world as platforms for others to speak. It also reflects our intuitive understanding of what we are doing when we use social media platforms. When we post something on a social media platform, we are speaking, not the platform, just as when we make a telephone call we are speaking, not the telephone company. Thomas takes these business facts and entrenched social norms and turns them into the legal doctrine of common carriage.

In this conception, a state or federal law that treated social media companies as common carriers and prevented them from removing accounts on political grounds would not infringe on the companies First Amendment rights because, as common carriers, they do not have their own speech rights. It is the speech rights of the users that are paramount. The platforms are there merely as enablers of the speech of others.

As precedent Justice Thomas cites the Turner Broadcasting case that required cable operators to carry broadcast signals. He notes that the key passage in that decision [I]t stands to reason that if Congress may demand that telephone companies operate as common carriers, it can ask the same of cable operators might apply also to digital platforms.

The response from conservatives was positive, despite the opinions departure from the libertarian orthodoxy on the First Amendment. The conservative outlet, the Daily Wire, for instance, quoted extensively and approvingly from the opinion. Economist Marshall Auerbach writing in the conservative American Compass welcomed Justice Thomass refusal to require a showing of market power before designating social media as common carriers and praised his promising function-centric approach.

Of course, It is not just conservatives who are concerned with social media censorship. The suspicion of the power of private tech companies to control speech on their systems is broadly shared among progressives. For instance, a leader of the progressive left, Senator Bernie Sanders, was unnerved by the bans on former President Trump, wondering when the handful of high-tech people who control social media platforms might target somebody else who has a very different point of view.

Some on the progressive left have also endorse the idea of treating social media as common carriers. On the Law and Political Economy blog, law professors Genevieve Lakier and Nelson Tebbe argue that users have a constitutional right to carriage on social media that is needed to counteract the threats to freedom of speech that result from private control of the mass public sphere. Lakier also posted a series of favorable tweets on the Thomas opinion.

We are seeing a growing convergence of left and right on identifying private sector domination of the digital information space as the key problem. Both groups are seeking reforms to curb this power and are engaging in new thinking about the First Amendment to defend these reforms. Their watchwords are fairness, nondiscrimination, political neutrality, access and carriage rights.

This emerging coalition of reform forces recalls the 1980s fight to codify the Fairness Doctrine that pitted a coalition of left and right led by Ralph Nader and Phyllis Schlafly against broadcasters and pro-business deregulators. Then-President Ronald Reagans antigovernment instincts prevailed over his conservative instincts and he vetoed the bill, thereby sustaining the decision by the Federal Communications Commission to repeal the Fairness Doctrine.

But common carrier regulation might not be the right way to go. In a response to Lakier and Tebbe on the Law and Political Economy blog, the renown First Amendment scholar Robert Post is right to note that treating social media companies as common carriers means that they would be compelled to broadcast intolerable and oppressive forms of speech. It might thereby invalidate even the minimal content moderation policies that these social media platforms currently deploy and exacerbate the problem of atrocious communication in the digital public sphere.

Post also notes that Congress cannot remedy this problem through content regulation of social media companies because the atrocious communication in the digital public sphere is protected speech; harmful perhaps, but legal. In our system, we largely rely on the private sector, not the government, to set the boundaries of acceptable speech. If social media companies cannot do this because they are treated as common carriers, then nothing is to stop them from becoming cesspools of pornography, hate speech, white supremacist propaganda and disinformation campaigns, all of which are constitutionally protected under current First Amendment jurisprudence.

There is another way forward, however. Common carrier regulation is not the only alternative to unfettered editorial freedom. Broadcasters are not common carriers, but they have some public interest responsibilities that prevent them from exercising full editorial control over their systems. At one time this included the Fairness Doctrine, but their public interest duties still require them to provide candidates with equal time and to provide reasonable amounts of educational and informational programs for children, to name just two examples. Enforcement by the Federal Communications Commission was and is flexible, showing great deference to the editorial judgment of the broadcasters themselves and intervening only when that judgment is so extreme that no reasonable person could agree with it.

A conception of the public interest responsibilities of social media companies needs to be developed, debated and discussed, and eventually legislated. One idea is that it is not access rights or non-discrimination among speakers that is needed for social media, but a fair representation of the views of the community. Our lodestar might be the principle recommended by free speech theorist Alexander Meiklejohn What is essential is not that everyone shall speak, but that everything worth saying shall be said.

Once those public interest duties are satisfied through an adequate and equitable distribution of community points of view, social media companies should be allowed to exercise editorial control over their systems. This would allow them to take the steps necessary to keep their systems free of harmful but legal material, just as broadcasters used their control of the airwaves to set their own boundaries of acceptable speech. This approach would create a middle ground between common carriage and unfettered freedom, where the editorial discretion of the social media companies would be broad enough to allow them to filter content, but not so broad that they can engage in viewpoint censorship of disfavored community perspectives.

Adapting these principles to social media would not be easy and will involve some hard thinking about technology. What should be done about amplification? Does a regulatory framework have to distinguish organic popularity from promotion by the platform itself? As a first approximation, the goal might be that the salience of the views on a platform should reflect their actual prevalence in the community, not the judgment of the platform of what should be popular or interesting or what would garner the most engagement for advertising purposes.

A regulatory structure would be needed to supervise such an arrangement and care must be taken to design it to prevent partisan bias of the regulator from corrupting the agency mission. The details will be messy and complicated but the time to start the hard work of constructing a balanced regulatory framework for social media is now.

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Justice Thomas sends a message on social media regulation - Brookings Institution

Mark Sherman, Associated Press Published 10:52 a.m. MT April 13, 2021

WASHINGTON Gerardo Serrano ticked off the border crossing agents by taking some photos on his phone. So they took his pickup truck and held onto it for more than two years.

Only after Serrano filed a federal lawsuit did he get back his Ford F-250. Now he wants the Supreme Court to step in and require a prompt court hearing as a matter of constitutional fairness whenever federal officials take someone's property under civil forfeiture law.

The justices could consider his case when they meet privately on Friday.

It's a corner of the larger forfeiture issue, when federal, state or local officials take someone's property, without ever having to prove that it has been used for illicit purposes.

This undated image provided by the Institute for Justice shows Gerardo Serrano outside the Supreme Court building in Washington. CBP agents seized Serrano's Ford F-250 and held it for more than two years.(Photo: APInstitute for Justice via AP)

Since 2000, governments have acquired at least $68.8 billion in forfeited property, according to the Institute for Justice, a libertarian public interest law firm that represents Serrano and tracks seizures. The group says the number "drastically underestimates forfeiture's true scope" because not all states provide data.

Serrano's troubles stemmed from some pictures he took along the way of a long trip from his home in Tyner, Kentucky, to visit relatives, including a dying aunt, in Zaragosa, Mexico. The photo-taking attracted the attention of U.S. Customs and Border Protection agents in Eagle Pass, Texas.

More border news: 'Arbitrary' and 'absurd': Uneven enforcement at Texas border prompts migrants to try, try again

When Serrano refused to hand over the password to his phone, the agents went through the 2014 silver pickup truck in great detail. They justified its seizure by saying they found "munitions of war" inside five forgotten bullets, though no gun.

Serrano, 62, initially took a gun, for which he has a permit, but a Mexican cousin warned him not to bring it into Mexico. He ditched the weapon, but forgot about the few bullets the agents eventually found.

A one-time Republican candidate for Congress, Serrano recalled being surprised at his treatment at the border in September 2015.

"I deleted the photos, but I'm not giving you my phone," Serrano said.

Told to park the truck, he said, he complained a bit before one agent reached into the pickup, opened the door, unfastened Serrano's seat belt and yanked him out of the vehicle.

"I got rights, I got constitutional rights and he snaps back at me, 'You don't have no rights here. I'm sick and tired of hearing about your rights.' That took me aback," Serrano said.

He was handcuffed and held for several hours, refusing to unlock the phone or answer any questions. Eventually, he was told he could go, but without his truck.

"I said, 'How am I going to get home?' There's this smirk I can't forget. 'We don't care how you get home,'" Serrano said.

He left the border station on foot, called a relative who lived nearby and hung around the area for several weeks, hoping to reclaim the pickup truck. Serrano finally rented a car and returned home. He continued to make $673 monthly payments on the seized truck.

Borderland: COVID-19 in Mexico: Vaccinations intensify in Jurez; pandemic worsens in Chihuahua City

Serrano might get some support from at least one justice. While an appeals court judge in New York, Justice Sonia Sotomayor wrote an opinion requiring New York City to hold prompt hearings when police seized cars. "It is this intermediate deprivation, lasting months or sometimes years without any prompt hearing before a neutral fact-finder, that we deem constitutionally infirm," Sotomayor wrote in 2002.

The Supreme Court took up the issue of whether governments must hold a reasonably quick hearing following a seizure once before, in a case from Chicago in 2009. But the court dismissed the case because the seized vehicles all had been returned by the time the case was argued.

In this undated image provided by the Institute for Justice, Gerardo Serrano holds a photo of his pickup that was held by the U.S. government for more than two years after a seizure at the border in Eagle Pass, Texas.(Photo: Institute for Justice via AP)

The Biden administration is urging the court to reject the case, saying there was nothing wrong with the initial seizure of the pickup and arguing that Serrano's claims ended when the vehicle was returned to him.

But Serrano's lawyers contend that the court should confront the issue because otherwise governments will continue to hold property for long periods and return it only to evade a judge's review.

"The rampant due process violations associated with modern civil forfeiture warrant review," they said in a high-court filing.

Serrano did get to see his aunt on the 2015 trip. Cousins drove across the border and took him to her. "When I went back home, three days later they called me and said she died," he said.

Opinion guest column: What can the US government do to respond to the border surge?: Andrew Selee and Andrea Tanco

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A New York State oversight agency admonished a judge who presides over East Hampton Town Court and Sag Harbor Village Court for helping a local political candidate, which violates judicial ethics rules.

The New York State Commission on Judicial Conduct admonished Justice Lisa Rana on March 18 for engaging in inappropriate political activity by editing essays and letters to the editor authored by David Gruber, who unsuccessfully tried to unseat East Hampton Town Supervisor Peter Van Scoyoc in 2019.

Rana admitted that she participated in prohibited political activity and prohibited campaign activity when she edited candidate Grubers draft submissions, the commission wrote in its admonishment. Even political activity that is anonymous violates the rules. [Rana] also violated the ethical rules when she provided strategic political advice to candidate Gruber.

Rana, a Republican, was advising Gruber, a Democrat running on the Independence and Libertarian lines against the Democratic incumbent. The East Hampton Star, which received some of the letters along with the East Hampton Independent, first reported on the issue when an editor noticed that the judges name was highlighted in the track changes editing function on the files submitted to the newspapers.

The letter that was sent to the Indy and Star did have the tracking turned off, yes? Rana wrote to Gruber. Otherwise, they will see my name attached to the corrections?? That would be very bad indeed.

Gruber denied sending files showing Rana edited his letters. But when a reporter questioned her about it at the time,, Rana admitted editing the letters and denied that she violated the rules. She later acknowledged to the commission that she knew providing anonymous political advice to a candidate was wrong.

Rana, an attorney for 28 years who grew up in East Hampton, has been a town justice since 2004 and village justice since 2011. Her terms for both posts expire in 2023.

She did not edit any political opinion essays and letters to the editor for any other political candidate and will not do so in the future, the commission wrote. Prohibited political activity is not renderedpermissible by being conducted anonymously. While judges are permitted to engage in political activity on behalf of their own campaigns for judicial office, the ethical rules strictly prohibit a judges direct and indirect engagement in political activity

The commission concluded, We trust that respondent has learned from this experience and in the future will act in strict accordance with her obligation to abide by all the rules governing judicial conduct.

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NY Ethics Board Admonishes East Hampton Town Judge for Helping Political Candidate - Dan's Papers

While the Libertarian Party may be a political afterthought, libertarian ideology is not. Many Republican voters have assimilated libertarian ideas into their understanding of conservatism, so are irked by much of the American rights turn away from free-market orthodoxies and toward economic populism. Although I am sympathetic to this shift toward more family-friendly economic populism, I still believe that libertarianism may offer important insights.

If a new synthesis between conservative and libertarian ideas is to develop, however, it will have to begin with humility, which is where conservative and libertarian political philosophy should overlap in shared recognition of human fallibility and finitude.

Last century, right-leaning intellectuals and writers sought to unite American conservatives and libertarians by asserting the interdependence of liberty and virtue. This fusionism urged conservatives to recognize that virtue could only be fully realized under liberty, and it urged libertarians to acknowledge that liberty was unsustainable without virtue.

Of course, there was a problem: whose virtue, which liberty? The old fusionism required a shared, or at least broadly overlapping, understanding of liberty and virtue.

This commonality diminished over the decades, and the collapse of the Soviet Union abroad, as well as cultural changes at home, have left the two camps with fewer common concerns and priorities than before. A renewed fusionism will require conservatives and libertarians to find a common cause, beginning with a shared humility and awareness of human limitation.

There will still be differences. Conservative humility emphasizes deference toward the tried-and-true of what has worked in the past; libertarian humility emphasizes the propensity for even the most well-meaning plans, and especially government initiatives, to go awry. But each side should be able to recognize the others merit, and a shared appreciation for human limitation can bring admirers of Edmund Burke and of Friedrich Hayek together.

Such an alliance will be weakened, perhaps even broken, by hubris, which tempts each side in its own way. Thus, although I have sympathies in their direction, I fear that many of the rights emerging economic populists and nationalists have forgotten the need for humility.

In projecting the efficacy of their proposed programs for the revitalization of family, the bolstering of the working class, the succor of the poor, and other worthy goals they often appear to ignore the risks of regulatory capture, moral hazard, and similar problems. Effective government is difficult, and even successful programs will have trade-offs and unintended consequences. These dangers are sometimes overemphasized to the point of paralysis, but this is no excuse to err in the opposite direction.

Conservatives know that society is complex, and governing well, or even passably, is difficult; this is why we prefer reform to radical, revolutionary change. Thus, Anglo-American conservatism has emphasized that those who haughtily presume that they will easily bend government and society to their will are likely to fail, perhaps disastrously. Those on the right who are newly willing to deploy government power in the style of the European throne-and-altar right would do well to humbly reflect on their own limits before beginning. Rulers, as well as the ruled, are sinful creatures in need of restraint.

Libertarians, in turn, delight in reminding conservatives of the limits and dangers of government power, but they often indulge in their own forms of hubris. Philosophically, instead of focusing on human limitations, many libertarians rely on rigid and absolute systems that ignore the realities of human nature and life. Conservatives are right to be skeptical of libertarian arguments based on abstract systems of rights derived from an ahistorical, imaginary state of nature or social contract.

We are not, for instance, born as rational, autonomous individuals. Rather, we only attain limited degrees of independence and reason through often-difficult effort and instruction. A political philosophy that presumes a populace of rational, independent individuals without accounting for how such persons are formed is self-sabotaging. As the old fusionism insisted, those who would defend liberty must attend to the preconditions for sustaining liberty virtue, family, faith, and community.

Thus, among the ironies of modern libertarianism is that, although its flagship publication is called Reason, that magazine frequently features articles presuming that reason is the slave of the passions a tool for fulfilling our idiosyncratic desires, rather than what should control them. There and elsewhere, much of todays libertarianism has a propensity toward techno-utopianism and a preoccupation with porn, pot, and prostitution. The prudential case for liberty is replaced by a celebration of juvenile libertinism sex, drugs, and maybe some electronic dance music thrown in for good measure.

This libertine outlook is justified by apparently humble reasoning: who is to judge whether one way of life is better than another? But this relativistic pose proves more than it means to. After all, who then is to say that liberty is better than the alternative?

The assertion that human beings deserve liberty, or have a right to liberty, presumes truths about human beings and what is good for them. These truths cannot then be ignored by a regime that legitimates itself through them. It is arrogant to reject the wisdom of the ages about human flourishing and the life well-lived.

In the end, the libertarian insistence that all shall be well if we just let free minds and free markets do their thing is a mockery of religious belief. It puts man and the market in place of God. It is hard to govern well, but that does not mean the attempt should be forsaken in a drugged haze amidst the glow of streaming webcam sex shows. Such a society has simply embraced another form of tyranny and is content to be enslaved to base desires.

If we are to avoid this, as well as the follies of governmental good intentions gone awry, conservatives and libertarians must both check their pride to work toward a new fusionism. Their common ground begins with humility.

Nathanael Blake is a senior contributor to The Federalist and a postdoctoral fellow at the Ethics and Public Policy Center.

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Humility Is Where Conservatives And Libertarians Can Still Find Fusion - The Federalist