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Security,

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chatter,

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law fair no bull

0:27

and the aftermath.

0:33

One thing that's frustrating as an observer

0:35

of this litigation to watch is

0:38

that the parties have staked out these

0:40

positions that are just diametrically opposed

0:43

visions of the first amendment. On

0:45

one vision on, you know, Texas's

0:47

vision, The first amendment has absolutely

0:50

nothing to say about the ability of states

0:52

to regulate the social media platforms. And

0:54

on the other vision, the platforms any

0:57

regulation of the platforms is, you

0:59

know, if not per se unconstitutional, then

1:02

almost certainly unconstitutional. And,

1:04

you know, if I had to choose between, you

1:07

know, these absoluteest visions, I would choose the

1:09

platform's vision of the first amendment. But, you know,

1:11

to be honest, I find them both unattractive.

1:13

I'm

1:13

Quinta Jurassic, senior editor at

1:16

Lawfair, and this is

1:18

the Law Fair podcast. September

1:20

twenty third, two thousand twenty

1:22

two. Our arbiters

1:23

of truth series on the

1:24

online information ecosystem has been taking

1:27

a bit of a hiatus, but today

1:29

we're back. On this episode,

1:31

we're discussing the recent ruling by the US

1:34

Court of Appeals for the fifth Circuit, a

1:36

net choice v Paxton. upholding

1:39

a Texas law that binds

1:41

large

1:41

social media platforms to certain

1:43

transparency

1:43

requirements and significantly

1:46

limits their ability to moderate content.

1:49

The decision is truly a wild ride.

1:51

So unhinged that it's difficult to figure

1:54

out where first amendment law about

1:56

social media platforms

1:57

might go next. To discuss,

1:59

I sat down with Alan Rosenstein, my

2:02

fellow senior editor at

2:03

Lawfair, an Alex Abdo,

2:05

the litigation

2:05

director at the Knight First Amendment

2:07

Institute at

2:08

Columbia University, who's

2:10

come on the podcast before

2:11

to discuss the case. We

2:13

did

2:13

our best to make sense of the HIF circuits

2:15

ruling. And

2:16

chart out alternative possibilities

2:18

for what good faith jurisprudence on

2:21

social media regulation might look like.

2:23

It's the law fair podcast, September

2:26

twenty third. The

2:27

fifth circuit

2:28

is wrong on the Internet.

2:31

Alex

2:31

and Alan, thank you for coming

2:33

on to talk about what

2:34

I think is truly one of the

2:36

wildest appellate court decisions I

2:38

have read in a very long time.

2:41

Before we jump into the details though, I do

2:43

want to start with an overview of the case

2:45

itself. Alan, would you be able to

2:47

give listeners kind of the the short version

2:49

of what exactly this is about? Sure.

2:52

I I'll certainly try to give to give the short

2:55

version. So this is about a Texas

2:57

law commonly known as HB twenty.

3:00

That does a lot of things. But the main thing it

3:02

does is it purports to

3:04

limit the extent to which

3:06

social media platforms

3:08

and really we're talking about the the

3:10

big ones, you know. Facebook and Twitter

3:12

and that's and and those platforms. It

3:15

hoards to limit how much they can moderate

3:17

what their users say on the platforms.

3:20

The the law uses the language

3:22

of censorship, but really we're talking

3:24

about the same thing. And what's notable about the

3:26

Texas law is that limits

3:29

content moderation based on

3:32

the viewpoint of the user or another

3:34

person. This is the real kind of core

3:36

of the matter. So basically, it prohibits

3:39

moderation on a very

3:41

broad basis. Right? On the basis really

3:43

of the the political

3:45

message of the content.

3:48

Now when this law was first passed,

3:51

the platforms under Net Choice, which

3:53

is their trade organization, quickly

3:55

went to the district court to get it enjoined.

3:58

The district court did, finding, applying

3:59

sort of standard first amendment case

4:02

law that the law was unconstitutional. Then

4:04

Texas appealed to the Fifth Circuit, which

4:06

I think in a move that surprised many people,

4:09

lifted the stay of

4:11

the district court in an opinion that had

4:13

actually no opinion attached to it.

4:16

So we were left wondering what the Fifth

4:18

Circuit saw in this law

4:20

that the rest of us all kind of assumed was

4:22

pretty clearly unconstitutional. The

4:24

platforms then took it up to the Supreme Court, and then

4:26

the Supreme Court And I think it was a

4:28

five to four, maybe six to three decision. I don't remember,

4:30

but it was a split decision overturned

4:32

the fifth circuits stay

4:34

of the district courts in junction of the

4:36

Texas law. So basically, until

4:38

last Friday when the Fed circuit came out with his

4:40

opinion, the law was enjoined.

4:43

And now, the Fed circuit having

4:45

issued an opinion that not just uphold

4:47

the law, but uphold the law on

4:49

very aggressive and I think it's fair to

4:51

say fairly radical grounds. the

4:54

law will at some point once all the kind of

4:56

judicial paperwork comes through, we'll

4:58

go into force unless the platform

5:00

succeeds in getting either the fifth circuit on

5:02

bunk or the Supreme Court to issue yet

5:04

another stay while this continues, which

5:06

I think is what most watchers

5:08

think will happen. But, you know, within

5:10

a matter of days, it may very well be that

5:12

Facebook and Twitter are no

5:14

longer able to moderate huge

5:16

swathes of their platforms, at least to the extent

5:18

that they continue to give Texas

5:21

access. Howard Bauchner: Yeah, so

5:22

that that Supreme Court ruling was five to

5:24

four. It was interesting lineup

5:26

in the the dissents. Alito,

5:28

Thomas Gorsich, and Kagan,

5:31

really a a dark horse there, and she did

5:33

not give us any indication of why.

5:35

she had she would have denied

5:36

the application to bake it. Alex,

5:39

is there anything you wanna add there

5:41

about the basic details of the case and

5:42

the procedural history that listeners should keep in

5:44

their minds? Well, I'll

5:45

just pick up on one thing you just had Quinta, which

5:48

is justice Kagan's, you know,

5:50

vote earlier in the case. It'll be really

5:52

interesting to see where she

5:54

ends up once, you know, this case or

5:56

the Florida case or both together

5:58

are actually properly

5:59

before the Supreme Court for a decision because

6:02

she does have somewhat idiosyncratic

6:04

views on the first amendment or maybe idiosyncratic

6:06

is the wrong word. She has

6:08

less maximalist views on the first amendment

6:11

and it'll be interesting to see where

6:13

she ends up. But

6:14

otherwise, I think, you know, the real conversation

6:17

here is in the details of the decision itself,

6:19

and and I'm sure we're just about to get there.

6:21

But it's a pretty shocking decision

6:23

and, you know,

6:24

looking forward to discussing it.

6:26

Yeah.

6:26

And so just for personas who

6:28

haven't perhaps been quite as good to

6:30

this case. The Florida case that you mentioned, there's

6:32

kind of a a comparable, though different in many ways.

6:34

Florida law that went through a

6:36

similar process, the eleventh circuit.

6:38

had AAII think

6:41

it's fair to say somewhat more careful.

6:44

Ruling, I don't know if either of you would

6:46

be able to give a quick overview of that

6:48

listeners have a sense of how those compare. Howard

6:50

Bauchner: You

6:51

know, it's it held that

6:53

Florida's law which prohibited

6:56

platforms from

6:58

censoring the views of journalistic

7:00

enterprises and candidates for political

7:02

office. It held that that portion of the law was

7:04

unconstitutional because

7:06

it overrode the editorial

7:09

decision making of the platforms.

7:11

And, you know, in

7:13

that way, fundamentally disagreed

7:15

with the analysis in the Fifth Circuit's decision

7:17

on

7:17

the transparency provisions of Florida's

7:20

law, it agreed with the Fed Circuit that those

7:22

should be subject to review

7:25

under a supreme court decision called Zouder,

7:27

which provides for a lower level

7:29

of scrutiny for requirements

7:32

that commercial enterprises disclose

7:34

information about the services that they

7:36

offer. And

7:37

it held that at least on the record before

7:39

it,

7:40

the platforms hadn't made an adequate

7:43

showing that they were likely to succeed in challenging

7:45

the constitutionality of those

7:47

transparency provisions. But the

7:49

key, you know, difference between the eleven

7:51

circuit pin on the one hand and the fifth circuit on

7:53

the other is how they analyzed

7:56

the basic applicability of

7:58

the first amendment to what platforms

7:59

do when they moderate user content. And

8:02

the eleven circuits said, you know, they they

8:04

look

8:04

close enough to more

8:07

traditional media organizations when they engage

8:09

in that kind of content moderation, and

8:11

so do benefit from the protections of the

8:13

first amendment. and held that Florida hadn't

8:15

made us sufficient showing to overcome that

8:17

protection. Yeah. And

8:18

just quickly following up on on what Alex

8:20

said about the transparency provisions

8:22

in the Florida law and and Zatar, these

8:26

transparency provisions, not

8:28

the exact transparency provisions, but

8:30

transparency provisions also existed in in

8:32

the Texas law. And in the

8:34

process of upholding the

8:36

content moderation provisions of the Texas law,

8:38

the Fifth Circuit also upheld the

8:40

transparency provisions of the Texas law.

8:43

So just to sum up, as these different

8:45

cases are going through the courts, I think it's useful

8:47

just to separate

8:49

two kind of different legal issues.

8:52

One is this question of

8:54

whether states can require transparency from

8:56

the platforms, whether they can require the platforms

8:58

to close, their policies provide statistics,

9:00

provide a complaint and appeals process.

9:03

Right now, the two circuit court decisions on that

9:05

are in accord. Both the fifth

9:07

circuit and the eleven circuits say that they

9:09

can under this zouder test.

9:11

And not to make predictions, I

9:13

suspect that the Supreme Court will agree

9:15

with that as well. At the very least, that's

9:17

the much, much less controversial part of these

9:19

laws. The really controversial part of these laws and

9:21

what I suspect will spend the most of our time today

9:23

talking about are the state attempts

9:25

to substantively limit how much

9:27

the platforms themselves can moderate. And

9:29

there you have a very, very stark

9:31

circuit split. between the eleven circuit and the fifth

9:33

circuit, and also just an issue of

9:35

immense importance, which is why this probably

9:37

will at some point end up at

9:39

the Supreme Court. Alright.

9:40

So I think we've we've set the table.

9:43

Let's dig into the details to to

9:45

mix and metaphor.

9:46

What did you both make of the

9:48

opinion? Alex, let me turn to

9:49

you first. Yeah. Well,

9:51

I took my hand a minute ago. I think it's a

9:53

shocking ruling. You know, if

9:54

you're at all familiar

9:56

with first amendment rulings over

9:58

the past fifty years, Reading

10:01

this one will make you feel as though you've entered the

10:03

twilight zone.

10:04

And the key

10:06

analytic move that the fifth circuit makes,

10:08

which I think is just entirely incorrect,

10:11

is

10:11

to characterize what

10:14

the platforms do, which it

10:17

describes as censorship, as

10:19

conduct rather than

10:21

the

10:21

exercise of editorial discretion that

10:24

might be protected by the first

10:26

amendment. And in that one kind

10:28

of slide of hand, it manages

10:30

to

10:31

turn these companies which to my

10:33

mind are in the business of, you know,

10:35

putting together expressive products

10:38

and communities and hosting public

10:41

discourse by their users, it turns them

10:43

into widget companies for for

10:45

purposes of the first amendment. And if

10:47

you take literally what the Fifth Circuit

10:49

says, the first amendment has almost

10:51

nothing at all to say about

10:53

the ability of state

10:56

governments or the federal government to

10:58

regulate the platforms in whatever way they

11:00

wish. And, you know,

11:02

having said that, it's not at all surprising

11:04

that the Pittsburgh ended up where it did, but

11:06

it all turned on what

11:08

I think is is extremely flimsy

11:10

distinction that it

11:11

tries to draw between what the platforms

11:13

do and you know, what

11:14

other curatorial enterprises

11:17

do. Yeah.

11:19

I I agree entirely. And and I should also

11:21

say, I am much more sympathetic

11:23

towards the idea that the government has

11:26

some role to play in

11:28

limiting what these companies do in

11:30

terms of content moderation. And so when

11:32

I when I sat down to read the Fifth Circuit

11:34

opinion, I kind of excited because I thought, you

11:36

know, maybe they've they've put forward a nuanced way

11:38

to think about this issue and uphold

11:40

this particular law. I was not a fan of the law, but

11:43

maybe there's some way they can do that in an interesting

11:45

way. And it's just a disaster from start to

11:47

finish. Making someone even

11:49

like me worry that my

11:51

position, which has all been about creating space for

11:53

state experimentation, actually isn't

11:55

even feasible if

11:57

this is what states and certain judges are

11:59

gonna go do with that. in which case,

12:01

maybe we should just prohibit states

12:03

from mucking around in this given how

12:05

unserious they're going to be if they

12:07

try. Alex referred to

12:10

this is or reading this opinion is entering the twilight

12:12

zone. Genevieve Lakeera

12:14

was at the University of

12:16

Chicago. She had a great tweet about how this

12:18

is like going into

12:20

the the upside down from from

12:22

stranger things. It's just a very

12:24

strange opinion. And it's strange

12:26

just from some basic

12:29

principles of judicial craft, which is that an

12:31

intermediate court is supposed to at least

12:33

try to apply supreme court

12:35

precedent faithfully And there's

12:37

just a lot of indication that this court was

12:39

not trying. Some of it is because it

12:41

almost literally said so. It

12:43

begins the opinion with this long discussion

12:45

of the original understanding of the first amendment

12:47

when it was ratified in the late eighteenth

12:49

century and how this applies today. which

12:51

is, I don't know, maybe an interesting conversation.

12:53

But of course, not how the Supreme Court

12:55

has handled these situations in

12:57

the past. And then when it finally gets

12:59

the doctrine, it says this

13:01

really, I think, remarkable

13:04

statement which is

13:06

basically that while the platforms

13:08

don't engage in this historical analysis,

13:10

instead they just give us a bunch of supreme court

13:12

doctrine. which really made my job drop because, of

13:14

course, that is how litigation generally

13:16

works. You start with the controlling doctrine. So

13:18

it's really not even clear from a judicial perspective what

13:21

the Fifth Circuit thinks it's

13:23

doing. And I think

13:24

that's particularly clear when you get

13:26

to the dog trial analysis that the

13:28

FITCERQ just misapplies. the

13:30

governing law. I just don't think there's any way

13:32

to read the relevant supreme court presidents.

13:35

Presidents that provide a lot of

13:37

person on protection to editorial decisions by

13:40

newspapers, by companies,

13:42

by, you know, organizers

13:44

of of marches and gatherings and

13:46

say that those don't at all

13:48

apply to the technology

13:50

companies. Now, I do think and

13:52

I've argued this in lots of different

13:54

venues over the past few years.

13:56

I think they're not a perfect fit. There's no question that there

13:58

are differences between a social media

14:01

platform and a newspaper, and that

14:03

those differences are relevant and should

14:05

create more of space for

14:07

government regulation. But

14:09

it's just not convincing at

14:12

all as either trial matter,

14:14

or as Alex points out, just a policy

14:16

common sense matter, to think that the first

14:18

amendment should have nothing to say

14:20

about government's attempts to regulate

14:22

what for better or for worse, is

14:24

the new digital public square

14:26

and is the most important or increasingly

14:28

for many of us, the most important venue

14:31

of communication. And it's this

14:33

all or nothing approach that the Fifth Circuit

14:35

takes that to me is the most disappointing

14:37

and that I think desperately needs to

14:39

be reversed because this cannot

14:41

be the framework that we

14:43

use to deal with these

14:45

really important policy issues going forward.

14:47

Can I

14:48

take a moment just to, you know, really

14:50

underscore the first thing that Alan

14:52

said? One thing that's frustrating as an

14:54

observer of this litigation to

14:56

watch is the

14:57

fact that and here, Alan,

14:59

maybe I'm echoing something you said recently

15:02

in a blog post, that the

15:04

parties have staked out these

15:06

positions that are just diametrically opposed

15:09

visions of the first amendment. On

15:11

one vision on, you know, Texas's

15:13

vision, The

15:14

first amendment has absolutely nothing to say

15:16

about the ability of states to regulate the social

15:18

media platforms. And on

15:20

the other vision, the platforms any

15:22

regulation of the platforms is,

15:24

you know,

15:25

if not per se unconstitutional then

15:27

almost certainly unconstitutional. And,

15:29

you know, if I had to choose between,

15:31

you know, these absoluteest visions, I would choose

15:33

the platform's vision of the first amendment. But,

15:35

you know, to be honest, I find them both unattractive.

15:38

And, you know, one thing that we tried to do

15:40

in our

15:41

our

15:42

Amicus brief was bring

15:45

a bit of

15:46

moderation to the

15:48

first amendment discussion because I don't think the first

15:51

amendment forces us to

15:53

choose between those two visions. I don't think it

15:55

actually be good for democracy if we were forced

15:57

to choose between those two visions. Because,

15:59

you know, the

15:59

state's vision would allow the state to

16:02

distort public discourse in ways that I think

16:04

would ultimately give the government

16:06

far too much control over what can be said

16:08

by whom. And the platforms,

16:11

vision, I think, would entirely

16:14

disabled governments from imposing

16:16

even reasonable regulations of

16:18

the digital public sphere, which I think

16:20

would also be bad. you know, for

16:22

for democracy. Now a lot of

16:24

the debate is gonna be in, you know, even if

16:27

you accept that the best

16:29

of Dallas this is the middle ground. You know, a lot of

16:31

debate is gonna be over what is a reasonable

16:33

regulation of the digital public sphere. And I think there's

16:35

a lot of room for disagreement there, but

16:37

as much as I agree

16:39

with, you know,

16:39

a sentence or two in this

16:41

opinion

16:43

saying that we

16:44

shouldn't think of these platforms as being entirely

16:47

indistinguishable from the newspapers. I

16:49

think that Fifth Circuit just went way too far with

16:51

with that argument. And I suspect that Alan

16:53

agrees.

16:53

I do. I I'm gonna try very hard

16:56

not to just make this agreement love

16:58

fest among the three of us, but I I do

17:00

think that the answer has to be somewhere

17:02

in the middle and and I think where the

17:04

disagreement is gonna be is in applying

17:06

that intermediate position

17:08

to the many different permutations of

17:10

these state laws that are gonna come up.

17:12

Yeah. I think it's

17:12

striking that this decision is perhaps so

17:14

bad that it's defeated even Allen's

17:17

most just aerial powers of doubles

17:19

advocacy. In

17:20

in all seriousness, Alex, I did wanna

17:23

ask you, especially in light

17:25

of the amicus briefs that that Knight has

17:27

submitted in in this case, and in the

17:29

Florida case, what you thought about

17:31

Alan's comment that,

17:32

you know, just the

17:34

this

17:34

opinion is so out there that it

17:36

may call and to question the

17:40

feasibility of a more intermediate position

17:43

as a kind of a path forward.

17:45

Alan, I was I was pretty strict to hear you say

17:48

that. And Alex, I'm curious for your

17:50

thoughts. I

17:50

I'm not so pessimistic. about

17:53

the possibility of a more nuanced

17:56

understanding of the first amendment. I mean,

17:58

listen, at the end of the day, our

18:01

judicial system or our political

18:03

system, I should say, puts faith in

18:05

the judiciary to

18:07

decide legal disputes. and to decide those disputes

18:09

on the basis of principles that are

18:11

articulated in, you know, judicial

18:12

decisions. And

18:14

and if the

18:16

idea is that

18:18

we can't trust the judiciary

18:21

with a rule that, you know, gives

18:23

the government some

18:24

authority in some circumstances. And so we

18:26

have to, you know, adopt

18:28

an absolutist rule, then I

18:30

would question, you know, the the

18:33

the decision of the first instance to entrust all this

18:35

authority to the judicial system because we have to

18:37

trust the judicial system in either case,

18:39

either to enforce the absolutist rule

18:41

or to you know, patrol the boundaries of

18:43

a more moderate one. And it's

18:45

not clear to me why if you don't trust

18:47

the judiciary in one circumstance, you

18:49

trust it in the other. And

18:51

I haven't yet reached that depth of

18:53

despair or pessimism. And,

18:55

you know, I think there is still

18:57

value in trying to answer this

19:00

question is though if we

19:02

come up with the right answer, our

19:03

institutions will, for

19:05

the most part, enforce it the way we expect them

19:07

to and when they don't, you we'll we'll try

19:09

to vote different people into office who will nominate judges, who

19:11

will. But that but that's kinda where I am. Alan,

19:13

I'm curious to hear you sound a little bit

19:16

more shaken. Yeah. Well, III

19:16

wanna give a little more context to to

19:18

what I mean. So there are a

19:20

couple of us in the academy who well,

19:23

not fans of laws like this.

19:25

because we think they're badly structured and

19:28

honestly just bad faith. Right? They're they're not

19:30

actually trying to prevent censorship.

19:32

They're just, for the moment, GOP

19:35

led hit jobs. There are some of us

19:37

who think that it's

19:39

important to two

19:41

bring more nuance to

19:43

the question of what the first amendment actually

19:46

says. And, you know, I've written about

19:48

this, Gen Aviv, Lakeira, Chicago, Evelyn

19:50

Duig, and Stanford have written about this. In fact, an

19:52

agenda if I've written, you know, series of really interesting

19:54

blog posts. I think, actually, on the

19:56

Knight website, you know, we thinking

19:58

the first amendment and trying

20:00

to, you know, again, create a little more nuance from the

20:03

generally absoluteest first amendment

20:05

positions, and particularly the kind of

20:07

pro first amendment positions are

20:09

the expansive. first term positions that I think generally have

20:11

been kind of dominant in in the

20:13

academy. Right? Which I think generally has

20:15

been maybe with some kind of

20:18

corporate first amendment arguments put aside

20:20

has generally been a big fan of, you

20:22

know, kind of free free speech as a as a

20:24

general matter, which I think all of us are to some

20:26

extent to another. And and, you know, the three of

20:28

us, and especially Evelyn and and Jen Aviv. I've

20:30

come under quite a bit of criticism

20:32

for this. Not just because

20:34

some people think that they're

20:36

wrong, in which case that's fine. We can have a

20:38

substantive disagreement. But because

20:40

some people think that even raising

20:42

these arguments that actually maybe the first amendment

20:44

does allow some government regulation and such

20:46

and such is just dangerous. Because

20:49

bad faith

20:50

actors like the

20:52

states of Texas or Florida, right, or some

20:54

judges or justices. We'll then

20:56

use those arguments to

20:59

reach really bad outcomes that no one supports, like let's

21:01

say the Texas law. And and

21:03

I generally think that

21:05

that's not a great critique. because at

21:07

least from the perspective of a scholar, I think

21:09

you just have to write what you think is true

21:12

and

21:12

not worry too much

21:13

about what happens with that.

21:16

otherwise, if you're constantly looking over your

21:18

shoulder and trying to predict

21:20

how people are gonna use your

21:22

arguments, really, it's you end up

21:24

with this intellectual self censorship that makes it just very difficult.

21:26

To do the sort of, like, dispassionate

21:29

abstract thinking that

21:32

academics are supposed to do. Right? That's kind

21:34

of their value add within the legal

21:36

discourse. You know, at the same

21:38

time though, academics are not

21:40

just abstract thinkers, where they're also

21:42

engaged in this policy

21:44

world. And I do think it is important

21:47

when not necessarily doing the first amendment

21:49

analysis, but thinking about the normative

21:51

recommendations about how your analysis should change,

21:53

how, let's say, courts or legislature should

21:56

act, You do have to ask yourself, you know, I'm definitely not in

21:58

the first best world, but am I in like a 37th

22:00

best world? Or is it even worse

22:03

than that? which is to

22:05

say, whenever you're putting forth a

22:07

nuanced standard, you always have to ask

22:09

yourself, well, what are the cost of that

22:11

standard? And you compare that to

22:13

the rule. And I will

22:15

say, I am a little shaken, and not

22:17

just by Texas and Florida, but

22:19

particular by the fact that the

22:21

fifth circuit and judge Oldham, who, you

22:23

know, I again say a lot of

22:25

nasty, you know, I I say a lot of mean things about his

22:27

analysis, but he's clearly an

22:29

intelligent, competent serious judicial

22:31

thinker, at least his background suggests

22:33

that he is. And for him to get this

22:35

not just wrong, but so epically

22:37

wrong, really makes me wonder

22:39

sometimes whether or not we can

22:41

or whether or not let's say

22:43

our political and legal community

22:45

has enough maturity to apply

22:47

Nuance standards to these kinds of issues. Now ultimately,

22:50

Alex, I'm with you. I'm I'm not I'm a

22:52

little shaken. My prayers have budged a

22:54

little bit. not given

22:56

up, and I will continue to say what I think the

22:58

answer should be. But I

23:00

can't pretend that I'm not a

23:02

little freaked out in a way that I was

23:04

not before. read the Fifth Circuit opinion on

23:06

Friday. Can I

23:06

just add I think it's a really

23:09

interesting and fascinating conversation, but I

23:11

wanna add some perspective

23:13

that has affected my thinking on

23:15

this question. Not not the first No. because you're

23:17

right, there are two strains of this argument, the

23:19

response to you know, scholarship and

23:21

advocacy focused on, you know, Nuance

23:23

and First Amendment decision making. You know,

23:25

the the first strand, which is

23:27

just rejection on the merits or disagreement

23:29

on the merits about whether the

23:31

first amendment allows for,

23:33

you know, the

23:34

the kind of tinkering

23:36

that state governments are engaging at all at

23:38

all or whether it's absolutist. I I totally

23:40

agree with you that that's that's exactly

23:42

the kind of debate that we should be engaged in if

23:44

we're trying to find what the right answer is. And if you're

23:46

gonna put a suggestion out there or an

23:48

idea out there, you know, best to have

23:50

that tested in public discourse before

23:53

you know, presenting it to a chord. The

23:56

second, you know, strand of the argument or the one that you

23:58

were focused on, which is that even raising these

23:59

arguments, you

24:01

know, kind of provides kind

24:03

of comfort to the enemy. I

24:05

find troubling for a variety of reasons, but

24:07

I wanna just put some perspective on it. There have

24:09

been a lot of very nominally

24:12

smart jurists over the last century who

24:14

have issued, you

24:16

know,

24:16

catastrophically bad decisions. you

24:18

know, the decisions that, you know,

24:21

would not stand the test of time, have not

24:23

withstood the test of time. And

24:24

it's easy I think in the moment of

24:26

that catastrophic decision making to

24:29

question the whole enterprise of

24:31

a search for Nuance and a search

24:33

for, you know,

24:34

the intellectually correct

24:36

response And we're in one of moments right now, you know, a moment where

24:38

there has been a lot of change in technology,

24:40

doctrine has yet to catch

24:42

up. And and, you know, while the

24:45

courts are trying to catch up with the

24:47

changes in technology. You know, we're

24:48

gonna get a lot of varied opinions

24:51

and ultimately they'll be resolved by the Supreme

24:53

Court, which also happened, you know, in the in the

24:55

past cases. Sometimes it was

24:56

a lower court in the past cases that issued the

24:58

epically bad decision. Sometimes it was a Supreme Court.

25:00

You know, when it was

25:01

a lower court, so you hope that the Supreme Court

25:03

got it right. when

25:04

it was a Supreme Court, you that a later Supreme Court,

25:06

you know, changed course.

25:09

But

25:09

to my mind,

25:10

what we're going through right

25:12

now I

25:12

I don't think you could put it even in the top

25:15

five of situations

25:18

where judicial doctrine seems

25:20

to have gotten so mangled in

25:22

the hands of motivated reasoning by by

25:24

judges as to call into question

25:26

the whole, you

25:27

know, the whole task of nuanced

25:31

decision making. That's

25:32

my own instinct, and that's why I'm not moved

25:34

by this argument that people like Gen

25:36

Aviv shouldn't be articulating

25:39

their I I also, you know, there's a bit

25:41

of anti intellectualism to this

25:43

argument that I find kind of troubling,

25:45

and there's also an assumption that

25:47

you

25:47

know, judges like Judge Oldum, you know,

25:49

are waiting with bated breath to see

25:51

what progressive scholars say before pouncing,

25:54

which I find, you know, probably

25:57

just empirically hard to defend as

25:59

what is in fact going on. You know,

26:01

impossible to know. I can't I can't disprove

26:03

that that's what's going on. It just seems very

26:05

unlikely to me. I

26:07

will say just even looking at the distinction

26:09

between the eleven circuit and fifth

26:12

circuit opinion.

26:12

So Alan, I think you wrote in your piece

26:15

that the eleventh circuit tried to resolve some

26:17

of these really difficult questions and

26:19

struggled, and the fifth circuit didn't really

26:21

try. That they just seem like a

26:23

completely

26:23

different genre

26:25

of writing, you know, the eleventh

26:27

circuit. It's a recognizably

26:31

appellate opinion. you know, it it goes through the

26:33

legal analysis. The

26:35

Fifth Circuit opinion, I think Daphne Keller

26:37

wrote it, you know, the

26:38

degree of just

26:41

sort of

26:42

freely ignoring precedent

26:47

of setting aside facts that don't

26:49

fit has almost a sort of a

26:51

bullying aspect of a kind of I can

26:53

say whatever I I want to

26:55

say. And because of that, I

26:57

I find it

26:58

difficult to even engage with

27:00

it as a judicial opinion

27:02

as opposed to you

27:04

know, a really, really long YouTube comment by

27:06

a smart person.

27:09

Unfortunately, we we exist in a

27:11

world where that that YouTube

27:13

comment has, you know, judicial force, and so

27:15

we have to deal with that. But

27:17

speaking speaking of the Fifth Circuit, you know,

27:19

we've we've talked a lot

27:21

about the majority opinion. There's also a descent. Alex,

27:22

can you talk a little bit

27:24

about that? Yeah. You know,

27:26

judge Southwick dissented. And

27:30

issued

27:30

an opinion that, you

27:32

know,

27:32

looked a lot more similar to

27:34

the eleven circus opinion. And

27:36

But just to your point, Quinta, the tone

27:39

of the descent was so much

27:41

different than the tone of the majority

27:43

opinion, you know. And judge Southwick noted

27:45

this himself in his opinion, the

27:47

majority was so convinced

27:49

of its decision. At

27:51

various times, it said that the

27:53

platform's argument was essentially

27:55

ridiculous. I think Judge Jones and

27:57

Concurrence described one of the platform's arguments

27:59

as ludicrous.

27:59

And Judge Southwick

28:00

had a lot more humility in his decision.

28:03

He said, you know, the the platforms

28:05

aren't a perfect fit for the old, you know,

28:07

for the old precedent on

28:09

the

28:09

media organizations or on parades,

28:11

for example, but they're a lot closer to that than

28:14

to, you know, widget companies, widget

28:16

making companies. And

28:18

you know, what this is the precedent that we have

28:20

and this is the precedent I'm gonna use until

28:22

the Supreme Court tells us otherwise. And it

28:24

was a much more, you know, moderate

28:27

decision, not not moderate politically,

28:29

but moderate temperamentally. And

28:31

in terms of conviction,

28:33

which I thought especially

28:34

refreshing after having read both Judge

28:37

Olm's opinion and

28:37

Judge Jones' concurrence in

28:40

it. So

28:41

let's talk then about the question

28:43

that Alan raised about. If we're

28:45

if we're going to chart a middle path,

28:48

what does that actually look like? How

28:50

does that play out in

28:52

practice assuming that, you know, the

28:54

the judicial actors we're looking at

28:56

are engaging in good faith. The

28:59

the main precedent here, I

29:01

think, it's fair to say, is the zoudera

29:04

decision, which the fifth circuit did rely

29:06

on in part and came up as well in the eleventh SRCA

29:08

analysis.

29:08

I'm curious for both of

29:10

your

29:10

thoughts, you know, what would you

29:12

like to see in terms

29:14

of a middle way here? Alan, let

29:16

me turn it over to you first. Howard Bauchner: Sure.

29:18

So, I mean, American constitutional

29:21

law has ways of

29:23

dealing with these sorts of disputes where constitutional

29:25

interests are at stake

29:27

and where neither side has a

29:29

monopoly on righteousness. And

29:32

that

29:33

intermediate position, unfortunately enough,

29:35

is called intermediate scrutiny. It is one

29:37

of the tiers of scrutiny. right, between the

29:39

very, very protective strict scrutiny and the very

29:42

unprotective rational basis review. You have

29:44

this thing called intermediate scrutiny.

29:46

And the idea is that

29:48

a government regulation is upheld

29:50

if it advances an important

29:52

government interest and that it does not

29:55

substantially burden more speech than is

29:57

necessary to further those interests.

29:59

And as a general matter, intermediate scrutiny

30:02

is what Americans call what the rest of the world

30:04

calls proportionality review, which is the

30:06

framework that most advanced

30:08

constitutional democracies use, again,

30:10

when thinking about difficult

30:12

constitutional issues. You know, for a background

30:14

on this whole way of thinking

30:16

about constitutional rights, I I highly,

30:19

highly recommend a book by the Columbia Law Professor

30:21

Jamal Green called how

30:23

writes went wrong, all about

30:25

how one of the reasons why

30:27

American constitutional law is

30:29

actually increasingly in this extremist

30:31

cul de sac on a whole host of

30:33

issues is because American

30:35

jurists tend to want

30:37

to either find something protected under the constitution and

30:39

therefore almost sacred or

30:41

find it totally unprotected under the constitution

30:43

and therefore the government can do whatever it

30:46

wants. and really the way the rest of the world does it and the way we should

30:48

do it is to say, look, most

30:50

issues in normally functioning democracies

30:52

are ones where both sides have something

30:54

reasonable to contribute. I think perfect

30:56

example of that. And here, I

30:58

I do depart from a lot of

31:00

the tech companies and a lot of their supporters.

31:02

I think that governments whether

31:05

it's Texas or Florida or any

31:07

other government even if they're motivated by

31:09

partisan motives because that's generally how

31:11

politicians act. I think governments absolutely

31:13

have an interest in making sure that

31:15

people can express themselves

31:17

on private platforms. The fact that their private

31:19

doesn't mean that the interests and the

31:21

values underlying the first amendment, right, of

31:23

free expression no longer apply.

31:26

And I

31:26

absolutely think that platforms, even if

31:28

they're trying really hard, don't necessarily have

31:30

the incentives in the free

31:33

market. to do constant moderation in the

31:35

way that's best for the discourse. And

31:37

that at the end of the day, it's the

31:39

people through the democratically elected

31:41

representatives who should ultimately deciding what

31:43

counts as the best discourse. On

31:45

the other hand, I also think

31:47

that platforms, you know, sure have their own

31:49

first amendment rights most importantly,

31:52

work to create

31:54

a communicative environment that

31:56

encourages their users first amendment

31:59

rights in particular the user's ability to

32:01

speak freely. And that it's

32:03

just not the case as the FedCERT

32:05

kept saying over and over again in its

32:07

opinion that censorship is not

32:09

speech. Because, of course, in order to have

32:11

a platform that people actually wanna

32:13

hang out on rather than just

32:15

a cesspool of pornography and

32:18

neo Nazis. You have to have some sort of

32:20

moderation, which is to say some censorship is

32:22

necessary in order to have

32:24

a good speech environment. Now,

32:26

how exactly you apply that to the

32:28

fact this intermediate position is of course the

32:30

whole question. And I don't think there's an abstract

32:33

answer. one of the benefits of intermediate

32:35

scrutiny or proportionality review however you want

32:37

to call it is that it's very, very fact specific.

32:39

So you have to take each case as it comes

32:41

You have to identify its salient features.

32:43

You develop a body of case

32:45

law over the years. And over

32:48

time, you hopefully reach some equilibrium

32:50

where you've kind of figured out what the rules of the road are.

32:52

You know, in my view, the

32:54

applying this to the Texas law would

32:56

result in its invalidation because its

32:58

substantive content moderation provision is

33:00

just way too broad. It really does disable

33:03

the platforms in large parts from

33:05

creating the sorts of

33:08

communicative environments that most users

33:10

will feel safe operating on. But that

33:12

doesn't mean that all such attempts would

33:14

be unlawful and I

33:16

can imagine situations, you know,

33:18

just using the Texas and Florida law, maybe

33:20

combining the Florida laws narrower

33:22

scope with the Texas laws

33:24

narrower remedies. maybe that would satisfy

33:26

intermediate scrutiny. I'm really curious to hear what Alex

33:28

thinks about it. Maybe Alex and I disagree, but that

33:30

that that's okay. The disagreement is not

33:32

a problem. as long as we're

33:34

all trying in good faith to deal with

33:36

the facts before us and over

33:38

time develop some common wisdom.

33:40

which by the way is how law works in every other

33:43

context. Yeah. So and there's a

33:44

lot that I agree with there. And and let me let me

33:46

start maybe dot triangulate

33:48

to answer Quinta's question. I think

33:51

that there is a diocidal path

33:53

already for Nuance. Nuance

33:55

decision making or Nuance first amendment analysis

33:58

as applied to regulation of

34:00

the social media platforms. And actually,

34:02

you know, contrary to this

34:05

critique of you know, progressive

34:07

scholarship on the topic. I actually don't think this

34:10

nuanced path requires any

34:12

new decision making from the Supreme Court. I think they've already

34:14

issued opinions that provide, you

34:16

know, for these possibilities. So when

34:19

it comes to transparency measures,

34:22

I think Quinta, you had exactly write the, you know,

34:24

relevant Supreme Court decision that may

34:26

provide for a path for

34:28

constitutional transparency provisions as

34:30

applied to social media

34:32

platforms, is a case called Zouderm, which

34:34

allows governments to acquire

34:37

companies to disclose purely factual and uncontroversial

34:39

information about their services

34:42

so long as

34:44

the requirements

34:45

don't unduly burden speech.

34:48

And

34:48

there are complicated questions about the threshold requirements and, you

34:50

know, what kinds of laws would

34:52

in fact impose undue burdens when

34:56

you're talking about the social media platforms and, you know,

34:58

we have a whole show or we just

35:00

discuss those, you know, really hard questions.

35:03

you know, I think that's the doctrinal path if there is one

35:06

for constitutional

35:07

transparency provisions. On more direct

35:09

regulation of the platforms of the sort

35:12

that Alan was just discussing. I think

35:14

there's also a potential pathway

35:16

anyway. Whether it leads to

35:18

the kinds of laws that Alan

35:20

may want to see, I don't know, but I think the path

35:22

is in the

35:23

Supreme Court's decision in Turner, which held

35:25

that impositions on

35:28

a company's editorial discretion which

35:31

is what these platforms claim Texas's

35:34

law violates, can be

35:36

constitutional under

35:37

the intermediate scrutiny Alan

35:39

was pointing to so long as they

35:41

are content neutral. And, you know, I don't think, you know,

35:44

Turner has been around for a long time

35:46

and allows for

35:48

the possibility Now,

35:50

whether there is in fact a kind

35:52

of content neutral

35:55

regulation directly of

35:58

the plot forms moderation decisions that would

36:00

survive scrutiny under Turner. I

36:02

don't know. I haven't yet seen

36:04

a proposal that I think

36:06

would be constitutional, but,

36:08

you know, every proposal is different than the

36:10

interest that each proposal serves might be different. And I

36:12

think you have to, in each circumstance,

36:14

just go through the analysis. Yeah,

36:15

I agree. And

36:16

I I kinda wanna make two two points in

36:18

response. First, I I think it's

36:20

important to distinguish between you

36:23

know, disputes that are

36:25

irresolvable and disputes that are resolvable

36:28

in principle. Right? So, you

36:30

know, if Someone thinks that the

36:32

first amendment protects everything and someone

36:34

thinks that the first amendment protects nothing, they're just

36:36

not gonna agree. Like, it really is two ships

36:38

passing in the night and that's just not a

36:40

good basis. for thinking about this sort of policy

36:42

issue. Then you have disputes that are resolvable

36:44

in principle, and I think, you know, the discussion that

36:46

Alex and I

36:48

could have Right? And, you know, one day we should have it over a beer is one of

36:50

these discussions. Right? We sort of agree in principle on

36:52

the framework. We have slightly different priors.

36:54

We have slightly different

36:56

empirical assumptions. he's a little more

36:58

comfortable with this. I'm a little more comfortable with

37:00

that. But at the end of the day, we can

37:02

probably come to something close

37:04

to kind of a a truce. right, as it were.

37:06

Right? Some sort of compromise

37:08

position. And I think this is ultimately, you

37:10

know, that one of the jobs of the course is

37:12

to articulate

37:14

to the extent possible frameworks that allow this sort of

37:16

compromise. Because, again, in a,

37:18

you know, reasonably okay functioning

37:21

sure democracy hundreds of millions of people, at the end of

37:24

the day, that's the best you can hope

37:26

for. And that's, you know, what my

37:28

kind of ultimate concern with the Fifth Circuit

37:30

opinion is, Right? It puts forward

37:32

such an extreme dioptimal

37:34

framework that this sort of compromised

37:36

solution is not possible. The second thing I would

37:38

say and this is so specifically to Alex's

37:40

question about whether or not you

37:42

could ever actually write down a law that would be narrow

37:44

enough to satisfy intermediate scrutiny.

37:48

though it'd be broad enough that it would actually do something

37:50

interesting? That is an interesting

37:52

question. And, you know, I I think we don't

37:54

know again,

37:56

I don't think the drafters of the Texas or Florida law were

37:58

particularly careful. I mean, the Florida

38:00

law is I think much

38:03

more carefully drafted than the Texas law. The

38:05

Texas law really just does I mean, I don't know

38:07

who wrote that, but they were clearly not

38:10

trying very hard. you know, so the

38:12

question is, could you sit down and write such a law? But even if you couldn't, it still

38:14

makes sense to hold open

38:16

the doctrinal possibility that you could

38:20

because that itself has a disciplining effect on

38:22

the platforms. You know, I think one

38:24

of the reasons that

38:27

content moderation has reach

38:29

the point that it has where everyone's upset

38:31

with it, is not just that it's hard,

38:34

though, that's a main

38:36

reason, definitely. It's that the

38:38

legal regime that the platforms have operated

38:40

under since really the

38:42

nineteen ninety six communications decency

38:44

act and, of course, the famous section two thirty, that's part

38:46

of it. has been one of perceived at least

38:48

total impunity. And, you know,

38:50

if you're operating, if you're a platform and

38:54

you believe that

38:56

the government has either granted

38:58

you total control or has washed

39:00

its hands of you. Right? And here I wanna

39:02

be sympathetic to platforms that have kind of been put

39:04

in this weird position of being given

39:07

all this authority to completely structure our

39:09

digital public square, to become the arbiters

39:11

of truth, right, that Mark Zuckerberg didn't

39:13

want them to become. and now suddenly

39:15

being yelled at about it by Republican states. If you're in

39:17

that situation, you might be maybe a

39:19

little less sensitive. to

39:21

the sorts of compromises you have to make.

39:24

So, you know, even if it's gonna be hard

39:26

for a state government

39:28

to actually adopt to write a law

39:30

that satisfies intermediate scrutiny, just

39:32

that possibility, I think, has a

39:34

useful disciplining effect on

39:36

platforms to keep them

39:38

from deviating too much beyond, you know, what

39:40

ultimately the public can bear. Howard Bauchner:

39:42

And I should I I agree

39:43

with all that, Alan, and I should actually amend what

39:45

I said. I can imagine

39:48

laws that would survive intermediate scrutiny in this area.

39:50

Maybe there are two buckets. You know, one, I

39:52

would think of as a kind of easier bucket, which

39:54

would be structural approaches to

39:58

the

39:58

platform's market position.

40:00

So an interoperability

40:02

requirement, you know, one that would require

40:06

Facebook to make its platform interoperable with other

40:08

platforms, to make sure that everybody

40:10

can speak, you know, to one another if they

40:12

want to, or to make sure that

40:15

competitors

40:15

to Facebook's news feed could

40:18

emerge, that

40:19

would, you know, give you different

40:21

views into your post. So

40:23

instead of seeing you know, your your feed in

40:25

the order

40:26

that Facebook wants you to see

40:28

it in, you see it in the order that

40:31

NPR

40:31

does or Fox News does or

40:33

CNN does, etcetera. And I think there

40:35

are other laws like that. I think of a

40:37

privacy law, for example, as a

40:39

really important law that you

40:41

know, Congress ought to pass and that may

40:43

end up limiting the stranglehold that

40:46

the platforms currently have over private

40:48

user data, which gives them their dominant

40:50

market position. and and,

40:52

you know, maybe also

40:54

coincidentally makes their

40:56

business model of targeted advertisements

40:58

a little bit less lucrative and

41:01

maybe also less effective in, you know, in the

41:03

way it's hijacked by political

41:06

actors and and

41:08

malicious actors to

41:10

manipulate people's votes and they'll lead up to an election. So

41:12

that's kind of one

41:13

bucket, you know, of laws

41:15

that I think would

41:17

potentially be subject to intermediate scrutiny

41:19

and and pass. And there

41:20

may be, you know, other laws that

41:22

more, you

41:23

know, directly go at

41:25

content moderation that that would pass as well. And there may even be

41:27

some that survived strict scrutiny. You know,

41:30

one, you

41:30

know, thought experiment

41:31

I've often gone through is

41:34

that is has to do is the hypothetical that

41:36

Jonathan to train posed some years

41:38

ago where he said in a

41:40

close election, he thought Facebook

41:42

would have the power to change the you know, to

41:44

change the results just

41:45

by tweaking

41:47

its algorithm to show get

41:49

out the vote messages to

41:51

one side or the other, you know, on the

41:53

political divide.

41:55

And, you know, you can imagine a

41:58

very narrowly

42:00

drawn law that operated

42:02

just in say the week leading

42:04

up to a national election

42:06

that tried

42:06

to prevent that kind of problem

42:09

you

42:09

know, I I could see an argument that that kind of

42:11

a law would be constitutional. I can also see really a

42:13

stark argument against it because I don't think that kind of

42:15

law would be constitutional as applied to, for example,

42:17

traditional media companies. But as you said, Alan and I

42:19

agreed, you know, the platforms are not traditional media

42:21

companies, they're different and those differences, you

42:24

know, may matter in terms of the strength of the

42:26

government's interest. in

42:27

any particular regulation and

42:30

also in the

42:31

burden that the law imposes

42:33

on the platform's editorial decision

42:35

making, which I think is

42:37

qualitatively different than than

42:39

how the, you know, traditional

42:41

media companies operate. Ellen,

42:42

because you mentioned section two thirty,

42:44

I'm honored bound to note that the fifth circuit

42:46

opinion also takes what I I think

42:49

is a the first time I've seen this

42:51

in a judicial opinion, certainly on the appellate

42:53

level, a view of two thirty

42:55

that significantly would narrow

42:58

the discretion that platforms

43:00

have to engage in in

43:02

content moderation. which I

43:04

think is is worth flagging

43:06

especially since two thirty reform

43:08

is very much in the air

43:10

right now. Alan, I know you had something that you wanted to follow-up

43:12

on if you wanna jump in.

43:14

Well, yeah. I mean, just to

43:15

say one thing about section section two

43:17

thirty. I mean,

43:20

the the to summarize, the key part of session two

43:22

thirty that really everyone cares

43:24

about is or at least in this case

43:26

is c

43:28

two. which basically says that a a platform can't be held

43:30

liable if it sensors

43:33

user content that it's

43:35

users or it finds objectionable,

43:38

and it lists a bunch of categories of

43:40

things that are objectionable, you know,

43:42

lewd, Lascivious, I forget the exact terminology, and then there's just catch

43:44

all provision or otherwise objectionable. And

43:46

basically, what the court does is it

43:48

says, well, The phrase otherwise

43:50

objectionable comes after is at the end of

43:52

this long list of examples of things that

43:54

are objectionable. So, really, we should read otherwise

43:56

objectionable as

43:58

similarly objectionable. which, to be

44:00

clear, and I teach statutory

44:02

interpretation, that's not a crazy

44:04

reading of the statute. There are some scholars

44:06

that agree with it. but it's

44:08

another example of the

44:10

court making these incredibly

44:12

bold legal conclusions with very

44:14

little analysis no sense of how the president has worked,

44:16

and very little

44:18

concern with the second

44:22

order cost on the platforms. And

44:24

that's actually the thing I I really wanted to talk about

44:26

because Alex mentioned the question of burden. This is

44:28

something we haven't talked about

44:30

in part because the court does such a

44:32

bad job of talking about it. It really doesn't talk

44:34

about it at all. And because I do think there's an

44:36

understandable reluctance to worry too much

44:38

about the burden of

44:40

laws on what are literally the biggest companies in the world. Right? Like,

44:42

no one weeps for Mark

44:44

Zuckerberg and his billions and billions

44:46

of dollars. But it's a

44:48

mistake to just think of it that

44:50

way. Because of course, when we talk about

44:52

the burden on a platform,

44:54

those costs as it were, then get passed on to

44:56

us, not necessarily in the form of fee

44:58

since all these platforms are in a sense

45:00

free. Right? We pay for it with

45:02

our data. but in a

45:04

sense of how useful the

45:06

platforms are to us. And one thing that's

45:08

really notable in this

45:10

opinion and in the

45:12

underlying law is that there's just no sense of whether any of

45:14

this is technologically feasible.

45:16

You know, these are state laws.

45:19

So presumably the

45:22

the most obvious response to

45:24

the platforms would be to

45:27

create separate basically experiences for people in

45:29

one state versus another state, especially if

45:31

different states have different state laws. That's

45:34

not a thing that's easy to do. There's

45:36

no switch. that a

45:38

platform can flip in order to

45:40

satisfy all of these

45:42

obligations. You know, one thing we haven't talked about, but that the

45:44

Supreme Court will hopefully have to address. whether

45:46

or not any sort of regulation of content

45:48

moderation can even happen at the state

45:50

level under the dormant commerce

45:52

which is an interpretation of the commerce laws of of the constitution, there

45:55

are some limits to what states can

45:57

do even within their

45:59

own states to the extent

46:02

that those regulations cause serious problems for interstate commerce.

46:04

Now, the dormant commerce clause is

46:08

controversial. It's very complicated. The doctrine is

46:10

all over the place. It's very fact specific.

46:12

But there is a point at which

46:15

if one state's actions wreck

46:17

the global economy or the

46:19

national economy, because they

46:21

make it impossible for an important interstate commercial

46:23

activity to continue. And platforms are certainly

46:26

an important interstate

46:28

commercial activity. then

46:30

there have to be limits on that. So it's important,

46:32

you know, as we talk about the first

46:34

amendment issues, which are obviously the

46:38

the core thing in this debate. It's important to

46:40

realize that there's an additional set of

46:42

complications that occurs because these are state

46:44

initiatives rather than a

46:46

federal law. So with

46:48

that

46:48

in mind, let's talk about

46:50

what happens next. We

46:51

have this fifth circuit ruling

46:53

on the books. I

46:55

know that the Florida Attorney General

46:58

has appealed

46:58

the eleven Circuit opinion up to the

47:00

Supreme Court, now that there is a

47:02

circuit split, so we can perhaps

47:06

anticipate the Supreme Court weighing in on

47:08

this. I don't think it's

47:09

crazy to imagine that that the the Fifth

47:11

Circuit sitting on bail might take

47:13

a a

47:13

different view of the matter if NetVoice does decide to take

47:15

it on bunk. In the meantime, platforms are

47:18

gonna have to deal.

47:19

As we said, with

47:22

these really complicated technical questions. What

47:24

do you

47:24

both expect to see going

47:26

forward? Are we heading into

47:30

a rocky period for both platforms and first amendment lawyers. Alex,

47:32

let me start with you. Yeah. I

47:34

think that's probably right. I

47:36

mean, I've I

47:38

strongly suspect that we'll see supreme court review of one or both

47:41

of these cases very soon. You know,

47:43

the eleven circuit case

47:45

is likely to reach the

47:47

Supreme Court first just because as you noted, Florida has

47:49

already petitioned for review. Net

47:52

Choice is expected to

47:54

agree that the Supreme Court should take

47:56

the case And, you know, if they both agree on

47:58

a, you know, a a case

48:00

of clear natural importance, I think there's a good

48:02

chance

48:02

that the Supreme Court will take that

48:04

case particularly given that

48:06

there is now a circuit split. You know, the

48:08

fifth circuit, the proceedings may be a little

48:10

bit different. I think what

48:13

will likely happen next is that Choice will ask

48:15

the fifth circuit to essentially

48:16

stay the legal effect of its

48:19

ruling to, you know, to to

48:21

withhold its mandate, which will have the

48:24

effect of leaving the district court preliminary

48:26

injunction in place

48:28

to allow the platform is opportunity

48:30

to seek a pretty quick review. You

48:32

know, the Fifth Circuit

48:33

might actually deny that and, you know, remember that

48:35

they lifted the you know, they put

48:36

in place a stay on the preliminary

48:39

injunction pending appellate review, which is what the Supreme Court reversed.

48:41

And so they

48:42

may actually reject

48:44

that request from

48:47

that choice. If they do, then I would expect that choice to

48:49

ask the Supreme Court to stay the Fifth Circuit's

48:51

decision pending

48:53

at least an opportunity to

48:56

petition for Supreme Court review. Either

48:58

way, you know, I

48:58

think we're likely to see one or both of

49:01

these cases on the Supreme Court's docket,

49:03

you know, very shortly. Alan,

49:04

what's what's your take? What are what are your bets for how this plays

49:06

out on the Supreme Court level? Yeah. I mean,

49:09

I I do think one way or

49:10

the other this is gonna get to the Supreme Court. It's

49:13

there's a circuit split even if the fifth circuit rehears on bunk. I

49:16

mean, unless they conclude exactly

49:18

what the eleven circuit did, which they probably won't,

49:20

there's still gonna be a circuit split. It's an

49:22

issue with immense practical

49:24

importance for the country. And it's also

49:26

one that enough justices are

49:28

obviously interested in. You know,

49:30

Justice Thomas has

49:32

written about stuff about this. Justice Alito wrote a whole long

49:34

thing when the opinion when the

49:36

the Florida opinion got up to the

49:38

Supreme Court, about how he

49:40

thinks this is really important and really interesting, and

49:42

he doesn't know what he what he thinks. You

49:44

know, Kagan is a wild card. So I think

49:46

significant Supreme Court. At which point,

49:48

you know, I think it's a

49:50

loose ball. Right? And I will say, I

49:52

think there are very few true loose balls

49:54

anymore in American

49:56

constitutional law. in large part because of, frankly, the the

49:58

polarization of the of the

49:59

judiciary. You know, I think at this point, we really have,

50:02

you know, liberal camp and a

50:04

conservative camp and we kind of know what each of them

50:06

thinks. And I think this is one of these rare

50:08

issues that really cuts across a

50:10

lot of the cleavages on the Supreme Court. You know, you have

50:12

your your traditional kind of pro

50:14

business conservatives. I think of people like

50:16

the chief justice. I think of

50:18

justice Kavanaugh. who I think would be

50:20

very very skeptical of

50:22

these sorts of laws. You know, even if they're

50:24

from conservative jurisdictions, these are justices

50:26

that I think, you know, are

50:29

are more pro pro business than they are kind

50:31

of pro GOP necessarily. And, you

50:33

know, justice Kavanaugh in

50:36

in the how it decision, which is kind of a related decision about first amendment

50:38

issues, as well as some decisions he

50:40

made while a judge on the DC circuit of an

50:42

inter net neutrality, has pretty clearly

50:44

signaled that he

50:46

does not think these laws work. And then I can also imagine some of the

50:48

Liberals joining him because they don't frankly

50:50

trust state

50:52

governments to exercise this sort

50:54

of power in a reasonable

50:56

way. So on the other hand, then

50:58

on the side that might support

51:00

these opinions, again, I think you have

51:02

people like Justice Alito and Justice Thomas who I think, you know, whether it's

51:04

because they have a particularly originalist

51:06

view of the first amendment or because

51:09

the media environments that they operate

51:12

in have convinced them that there is

51:14

this epidemic of censorship,

51:16

of big tech censorship. might be more

51:19

favorable to these opinions. And then you can imagine

51:21

some of the Liberals actually joining with them, not

51:23

because they believe that,

51:26

but because they would love to narrow the scope of the first amendment, which

51:28

has in the last two decades become the one

51:30

of the main do regulatory vehicles that the

51:32

Supreme Court

51:34

has used. when people talk about first amendment, whacknerism, and

51:36

citizens united, and hobby lobby, and all of those

51:38

opinions. You know, this might be one of the rare

51:40

situations where you can pick off some conservatives

51:42

to narrow the

51:44

first amendment. it. So like I said, it's it's really, really hard

51:46

to to predict. And,

51:48

you know, even if the court

51:50

agrees to

51:52

invalidate one of these laws or both of these laws or supports one upholds

51:54

both. You can imagine a real fracturing

51:56

on the appropriate test to apply.

51:58

Should it be strict

51:59

scrutiny? Should

51:59

it be intermediate what

52:02

should it be? So my prediction is

52:04

it's gonna be really messy, but that does make it

52:06

exciting. And again, it gives me hope.

52:10

because in in a world of so

52:12

much kind of legal

52:14

sclerotism where everyone's dug

52:16

into their camps, this is I think a rare

52:18

opportunity for the justices

52:20

to really do some first

52:22

order thinking and maybe advance the

52:24

ball a little bit. Alex, do

52:26

you want a hazard or prediction?

52:28

Yeah. I'm not a betting man, but I think that the Supreme Court is

52:30

very likely to invalidate the muskary provisions

52:32

of these laws at, you know, to

52:34

the extent that he hears these cases.

52:37

I I think Alan's right that this

52:39

is really is an open question

52:41

on the Supreme Court and, you

52:43

know, first amendment

52:44

cases cases maybe

52:46

more so than any other kind of, you

52:48

know, category of conceptual cases tend

52:50

to generate strange med fellows in

52:52

the Supreme Court, but I'd be

52:54

pretty surprised if, you know, the Supreme Court upheld either of

52:57

the must carry provisions in these laws.

52:59

To my mind, the much closer question in

53:01

the Supreme Court is gonna

53:04

be you know, what level

53:06

of scrutiny the court applies to the transparency provisions of the laws.

53:08

Because even if, like me,

53:10

you

53:10

think that at least some transparency vision

53:14

should be subject to scrutiny

53:16

under Zouder. Zouder is

53:18

you know, it has never been applied in this

53:22

which

53:22

is not surprising because this is an entirely new context and these

53:24

cases just haven't been litigated before. But

53:26

because it hasn't been,

53:27

you know, applied in

53:29

precisely this context, how it should apply here, if it

53:31

should apply here, is under theorized and underdeveloped,

53:34

and, you know, there are a lot of open questions

53:36

that if the Supreme Court goes down that path, it'll

53:38

have to

53:40

at least you know, consider and maybe even answer some of them if, you know, if

53:42

it doesn't just punt them all entirely to the

53:44

lower courts. But that's what I'll be watching more

53:46

closely. You know, I'd

53:48

I'd be genuinely shocked

53:50

if there were, you know,

53:51

more than, say, three votes

53:53

to uphold the must carry provisions.

53:55

But I think you

53:57

know, I I have no idea what the court is gonna

53:59

do with the transparency provisions.

53:59

Alright. Let's leave it there.

54:01

Alex, Alan, thanks for coming on. Thanks

54:03

so much

54:05

for having us. Thanks a

54:07

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