0:00

Hello

0:03

friends, I'm Jeffrey Rosen, President and CEO

0:05

of the National Constitution Center, and welcome

0:07

to We the People, a weekly show

0:09

of constitutional debate. The

0:11

National Constitution Center is a nonpartisan

0:13

nonprofit chartered by Congress to increase

0:16

awareness and understanding of the Constitution

0:18

among the American people. There

0:21

are several cases before the Supreme Court that

0:23

raise important questions at the intersection of

0:25

law and technology. In this

0:27

episode, I was honored to have Alex

0:30

Abdo, Clay Calvert, and David Greene join

0:32

me for a wide-ranging conversation exploring

0:34

the key tech cases before the Court

0:36

this term. This episode

0:38

was originally aired on America's Town Hall.

0:41

Please enjoy the conversation. This

0:46

is the beginning of our 2024 Winter Town

0:48

Hall season. We've

0:50

got some great programs coming up,

0:52

including conversations on David Hume,

0:55

Harriet Tubman, Abraham Lincoln,

0:58

the state of American democracy, and more.

1:02

I'm thrilled to share as well that

1:04

on President's Day, I'm launching my new

1:06

book, and I can't wait to share

1:08

it with you. It's called The Pursuit

1:10

of Happiness, How Classical Writers on Virtue

1:13

Inspired the Lives of the Founders and

1:15

Defined America. Jeffrey

1:17

Goldberg, the editor-in-chief of The Atlantic,

1:19

will join me in a conversation

1:21

at the NCC on February 19th,

1:24

and then we'll be often

1:26

running to talk about it throughout the

1:29

winter. I'm so excited to talk with

1:31

you about The Pursuit of Happiness and

1:33

this wonderful moral philosophy that inspired the

1:36

founders to think of happiness not as

1:38

feeling good, but being good, not the

1:40

pursuit of pleasure, but the pursuit of virtue.

1:43

We will have a great

1:45

discussion today about a crucial

1:48

topic, and that is technology

1:50

and the future of the First Amendment.

1:52

The Supreme Court is hearing a series

1:54

of important cases that may redefine the

1:56

nature of First Amendment rights online, and

1:59

we've convened a a dream team to help us

2:01

think through the issues in the cases.

2:05

Alex Abdo is inaugural litigation director

2:07

of the Knight First Amendment Institute

2:09

at Columbia University for that he

2:11

worked at the ACLU and

2:15

is a frequent commentator on the First

2:17

Amendment. Clay Calvert is non-resident senior fellow

2:19

in technology policy studies at the American

2:22

Enterprise Institute. He's also a

2:24

professor of law emeritus at the Levin

2:26

College of Law and Breckner eminent scholar

2:29

emeritus at the College of Journalism and

2:31

Communication and those are both at the University

2:33

of Florida. He's written

2:35

many books and

2:37

articles and is the

2:39

author of the textbook Mass Media Law

2:42

and also author of the Lawyer Nation

2:44

Media Privacy and Peering in Modern Culture.

2:47

David Green is senior staff attorney

2:49

and civil liberties director at the

2:51

Electronic Frontier Foundation. He's also an

2:53

adjunct professor at the University of

2:55

San Francisco School of Law. He

2:57

has significant litigation experience on

3:00

the First Amendment and was

3:02

lead staff counsel for the First Amendment project

3:04

where he worked on many cases including Bunner

3:07

versus DVD CCA. It's

3:09

an honor to welcome you Alex

3:11

Abdo, Clay Calvert and David Green.

3:14

In our conversations you've helpfully

3:17

defined the issues that

3:19

we have to talk about by dividing the

3:22

cases into three broad categories.

3:24

First there are the two net choice cases

3:26

which raise the question does

3:29

the First Amendment protect social media's

3:31

company's content moderation decisions. Second

3:34

there's the jaw boning decision, Murthy versus

3:36

Missouri and the question is can the

3:39

government pressure social media companies to

3:41

take down or hide content and

3:44

finally we have Linkey and O'Connor

3:46

Radcliffe, two cases that raise the

3:49

important question can government officials block

3:51

private citizens on social media? Let's

3:54

begin with the net choice cases

3:56

does the First Amendment protect social

3:58

media's company's content moderation. decisions. This

4:00

involves two laws from Texas

4:03

and Florida. Alex Abda, why don't you

4:05

tell us what those laws say and

4:07

broadly, whether or not you think they

4:10

are constitutional. Sure, I'll start by

4:12

saying it's great to be here, Jeff. Always a pleasure to

4:14

talk about the Constitution with you. So these

4:17

laws differ in

4:19

their particulars, but at the

4:21

highest level both Texas's and Florida's laws

4:23

do two things. First, they

4:25

limit the ability of social media

4:28

platforms to take down speech that

4:30

the platform or speech or users

4:32

that the platforms would prefer not

4:34

to leave up.

4:36

And they also require the platforms to

4:38

disclose a significant amount of information about

4:41

how they work and about decisions

4:44

they make to take down or

4:46

suppress user accounts or

4:48

user content. To get a

4:50

little bit more specific, Texas's

4:52

law has

4:55

a must-carry provision that forbids

4:57

social media platforms from censoring

5:01

users on the basis of

5:03

viewpoint. So a platform subject

5:06

to that law could not, for example,

5:08

take down speech on

5:10

the basis of its disagreement with that speech.

5:12

If it, for example, wanted

5:15

to take down what it considered to

5:17

be disinformation about some particular topic, that

5:20

would likely violate Texas's law because that

5:22

would be a removal of speech

5:24

on the basis of viewpoint. Florida's

5:26

law is a little bit different. It

5:29

forbids the platforms from censoring

5:31

candidates for office and

5:33

from censoring journalistic enterprises. So it's

5:36

not as broad a must-carry

5:38

provision as Texas is, but it is nonetheless

5:41

a must-carry provision in

5:43

that it requires platforms to carry, again, certain

5:45

accounts or speech that they would prefer not

5:47

to. And these

5:50

two different elements of

5:53

each of the laws, I think,

5:55

raise slightly different questions for the

5:57

Supreme Court to resolve. I'll

6:00

put my cards on the table just quickly so

6:02

folks know where I am,

6:04

and I'll give a little bit of

6:06

explanation. I think both of the must

6:08

carry provisions of the laws are unconstitutional

6:10

because I think they override the platform's

6:12

own editorial decisions about the speech

6:14

that they want to leave up or take down,

6:17

and the Supreme Court has recognized in a long

6:19

line of cases that the government

6:21

needs a very, very good justification before it

6:23

can force individuals or

6:25

companies to carry speech that

6:28

they would prefer not to carry,

6:30

and I don't think either of the

6:32

states has come anywhere close to justifying

6:34

their must carry provisions. I

6:36

think the transparency provisions of

6:38

the law are

6:41

subject generally to a

6:43

slightly different constitutional framework

6:45

because the Supreme Court

6:47

has said

6:49

that commercial disclosures, so

6:52

long as they are limited to

6:54

the compelled disclosure of purely

6:56

factual and uncontroversial information about

6:58

commercial products, can

7:01

be constitutional if the government

7:03

has justified them and

7:06

if they do not impose an undue burden on

7:09

speech. I think there's a

7:11

decent argument that at

7:13

least one of Texas's transparency

7:16

requirements satisfies that

7:19

framework, and I'm happy to get into the specifics

7:21

later. I don't think the

7:23

Florida provision that is before the Supreme Court satisfies

7:27

even that lower standard of

7:29

review because Florida's transparency

7:32

requirement is extremely

7:34

burdensome, and again, I

7:37

don't think satisfies even the lower level of

7:39

scrutiny the Supreme Court has set out for

7:41

commercial disclosures. There's more

7:43

in the details there, but I'll start out at the high level. Thank

7:47

you for that very helpful introduction to both

7:49

cases and for distinguishing between the Texas and

7:51

Florida law, which, as you note,

7:54

differ in the amount of disclosure that they

7:56

require you suggest that Florida require a huge

7:58

amount of no. and

8:00

Texas less so. Clay

8:02

Calvert in your piece Friends of the

8:05

Court, Friends of the First Amendment, Exploring

8:07

Amicus Briefs, a report for platforms editorial

8:09

independence which you published at the end

8:11

of December, you really helpfully summarize

8:14

the major amicus briefs and talk

8:17

about their contribution to

8:19

what the effects of the decision

8:21

would be starting with the anti-defamation

8:23

leads brief which says that the

8:26

cases would unconstitutionally deprive social media

8:28

platforms of content moderation tools they

8:30

urgently need. Maybe

8:33

tell us more about the highlights from some of

8:35

those other briefs that you discussed in that piece

8:38

and broadly your take on the cases. Sure,

8:41

so I agree with

8:43

Alex on the first part. I believe

8:45

that the content moderation provisions or the

8:48

must-carry provisions as we're referring to them

8:50

are going to be declared unconstitutional. Really

8:53

we can think of this as a right

8:56

not to speak case. It's another way of

8:58

thinking it that the Supreme Court is recognized

9:00

not only the First Amendment explicitly protects freedom

9:02

of speech but also the right not to

9:05

be compelled by the government to host objectionable

9:07

speech. So that's one way

9:09

of thinking about the content moderation or

9:11

must-carry provisions that really there is a

9:13

right not to speak case and you're

9:15

compelling social media platforms to host content

9:17

that they otherwise would not that violates

9:19

their terms of use or terms of

9:21

service. So in terms

9:24

of those briefs what the Anti-Defamation League

9:26

is really concerned with is the proliferation

9:28

of hate speech, racist speech, anti-Semitic speech

9:31

on the Internet and as Alex

9:33

was suggesting that the viewpoint prohibition

9:36

basically you can't remove somebody

9:38

based upon their viewpoint. What

9:40

the Anti-Defamation League is suggesting then

9:42

is that if somebody has a

9:44

racist hateful viewpoint you

9:46

couldn't remove that type of hate speech under

9:49

the terms of Texas's provision as I think

9:51

they make clear the ADL makes

9:54

clear in that case the Anti-Defamation

9:56

League. Other provisions the media law

9:58

resource center focus is on this

10:00

notion of the marketplace of ideas and

10:03

that platforms have a

10:05

very important role to play as gatekeepers

10:08

in the marketplace of ideas. The

10:10

marketplace of ideas, of course, is

10:12

the underlying notion that fair competition,

10:15

free and fair competition of ideas

10:17

will produce the truth in

10:20

our society. And that

10:22

requires whittling away or whittling away at false

10:25

ideas. And so what the

10:27

Media Law Resource Center focuses on in its

10:29

brief is this notion that platforms

10:32

actually play a very vital role

10:34

in this process by discarding or

10:36

jettisoning some speech and some users

10:39

that really don't go to that goal

10:41

of producing the best test of truth

10:44

or the best ideas. Another

10:46

one of the briefs was filed by national security

10:49

experts. And that

10:51

particular brief was very concerned about

10:53

how extremist terrorist

10:55

organizations lurk and

10:57

proliferate on social media

10:59

platforms and that both the

11:02

Florida and Texas laws would hinder and

11:04

hamper the ability of social media platforms

11:07

to remove such speech that

11:09

may threaten and jeopardize national

11:12

security interests. Other

11:14

briefs focus on the question of are

11:16

platforms common carriers? And the answer to

11:18

that is no. They're simply or not

11:21

common carriers. So there were

11:23

multiple friend of the court briefs filed

11:25

in this case on behalf of

11:27

or neutrally the NetChoice and CCIA.

11:32

Thank you so much for that and for summarizing

11:34

the position so well. David

11:37

Green, in

11:40

the spirit of the NCC, can

11:42

you make the strongest argument in favor of

11:45

constitutionality of the Texas

11:47

laws, which at least claim

11:49

to be attempting to hold the platforms

11:51

to First Amendment standards and refusing to

11:54

allow them to discriminate on

11:56

the basis of content or to ban speech

11:58

on that basis? And then give us

12:01

a sense, you've talked about how for several

12:03

terms now folks have been saying that the

12:06

court is eager to say something about social

12:09

media and content moderation. Might

12:11

these particular cases be that

12:13

occasion and if so what might the court

12:15

say? Well

12:18

you've given me the hard one

12:20

trying to defend these laws

12:22

I've been writing about how wrong these

12:24

efforts are since before Texas and Florida.

12:28

But let me just say this I think the only

12:30

way to defend the best

12:32

defense of these laws is to actually

12:35

have a view of social media that

12:37

doesn't reflect what social media actually is.

12:39

So I think the best defense of

12:41

these laws is that

12:43

social media is our sites that

12:45

are open for anybody where people

12:47

can freely publish to the audience

12:50

of their choice and

12:52

because of that there's some type

12:55

of function that

12:57

guarantees people access. That

12:59

really is the whether you frame that as

13:01

common carriage or something else I

13:05

don't know but I think that's at

13:07

least sort of the best defensive framework.

13:10

I think that fails though because first

13:12

of all that's not really what social

13:14

media is. Social media always has been

13:18

really from its very inception

13:20

been a curated process and

13:23

these laws actually directly attack and

13:25

really you can say are most

13:27

concerned with recommendation systems which

13:30

are really inherently not open

13:32

and passive and free flowing but

13:34

really controlled top down by in

13:36

a very typical editorial editorial

13:39

function. So I have a

13:41

hard time defending the

13:44

the must carry the must carry

13:46

provisions here. In

13:49

terms of what I think why

13:52

I think the court is interested in

13:54

this topic I think we've seen several

13:56

efforts over the last few

13:58

terms by the court to one. want to say

14:00

something about the

14:03

current state of First Amendment and

14:05

the internet and maybe social media

14:08

in particular. And they

14:10

seemed of the past really chosen bad

14:12

cases to do that. And

14:14

then when they finally get into the cases, they

14:16

end up going someplace else with them. And I

14:18

think we probably saw that most clearly last term

14:21

with Gonzalez

14:23

versus Google and Tamna versus Twitter, where

14:25

they seem to have taken these cases

14:28

due to finally say something about Section

14:30

230 and maybe even

14:32

say something about First

14:35

Amendment rights of social media

14:38

companies. And then realized, I think, once

14:41

they got into the briefing and look at

14:44

the cases closely, that the cases really presented

14:46

a poor opportunity for that. And

14:49

they dodged the issue. And just as they

14:51

had dodged the issue largely in

14:53

cases in previous terms. Here I

14:55

think, they've taken five cases. And we'll talk about

14:57

the other ones later. And I really think they're

14:59

hoping that maybe at least one of them will

15:02

give them the opportunity to say something. With

15:05

this court, there's always the possibility of

15:07

them wanting to take

15:09

a closer look at a case decided that

15:11

has been seen to be

15:13

established law. And so I don't know if

15:15

there are at least one or

15:17

two justices on this court who

15:19

want to reconsider. There's a

15:22

seminal holding in ACLU versus

15:24

Reno that we treat online

15:26

speech in an unqualified manner.

15:29

That it's not treated, it's not

15:31

considered exceptional in the way that

15:33

broadcast radio and television were considered

15:36

exceptional. And again,

15:39

it's not an issue that's being, it's

15:41

not an argument that's being directly pushed

15:43

by anybody in

15:45

these cases. But

15:48

I wouldn't completely discount at least

15:50

one justice wanting to say something

15:52

about that. So I do

15:54

think that these cases really will. It's

15:57

going to be difficult to avoid the First Amendment

15:59

issues. in these

16:01

cases. And so I think we'll find out

16:03

something about what the court thinks. Many

16:07

thanks for that. All right,

16:09

well, let's turn now to the next case,

16:12

Murphy and Missouri. The question is

16:14

whether the government efforts to pressure

16:16

social media platforms to take down

16:18

speech, often referred to as

16:21

jaw burning, violates the First Amendment. The

16:23

Biden administration had talked

16:26

to, pressured, or coerce, depending

16:28

on your view, the companies to take

16:31

down speech involving COVID disinformation

16:33

as well as some election disinformation. And

16:35

the question is when, if

16:38

at all, that violates the First Amendment. Alex,

16:41

Abdo, tell us about that case and

16:43

why you think that the court should

16:45

make clear that claims of unconstitutional jaw

16:48

boning should be evaluated according

16:50

to a coercion test that the court

16:52

introduced in a case called Bantam Books.

16:55

Well, let me start there, that is one of the

16:58

hardest conceptual parts of this case is

17:00

just figuring out what the right legal

17:03

framework is. For a

17:05

principle that seems obvious, and the principle that seems

17:07

obvious is the government is

17:10

not permitted to censor individuals

17:13

or censor views

17:15

or speech directly

17:17

through legislation or

17:19

through the exercise

17:22

of its official power. And the Supreme Court made clear

17:24

in the Bantam Books case in 1963 that

17:27

the government can't do that

17:29

indirectly either. It can't do

17:31

it through informal government action

17:34

that is designed to have

17:36

the effect of suppressing views. And

17:40

the test that the Supreme Court gestured

17:42

at in Bantam is

17:46

what we think of as the coercion test. It

17:48

said that the government

17:50

cannot coerce private

17:53

intermediaries for speech, in that case it

17:55

was book distributors, into

17:58

taking down protected. speech and

18:01

that the Supreme Court hasn't said anything about that test

18:03

in the 60 years, 61 now

18:06

I suppose, since Bantam

18:08

Books and the lower courts have applied

18:10

a kind of smattering of different legal

18:13

tests to this question and

18:15

you know to my mind this is a good

18:18

opportunity for the Supreme Court to clarify

18:20

you know a constitutional doctrine because it's a

18:22

little bit unclear. There are some circuits

18:26

that apply the coercion test but there are

18:28

other circuits that apply a state action test

18:31

from Blum versus Yoresky which was not a

18:33

First Amendment case it was a case about

18:36

when governmental coercion or encouragement

18:39

reaches the point that you

18:41

can actually hold the government

18:45

accountable for the private action

18:47

of private actors and

18:49

you know it's in other words the

18:51

question of when private action becomes state

18:53

action which is also a

18:55

really important question but it's a very

18:57

different one than the question of when

18:59

the government violates the First Amendment by

19:01

you know coercing private actors in the

19:04

suppressing speech. So you

19:06

know it's an important opportunity for

19:08

the court to clarify the doctrine

19:10

that applies and to give guidance to

19:12

the lower courts because even if the

19:15

court settles on coercion

19:17

versus persuasion which again is the

19:19

kind of test that

19:22

lower courts have understood Bantam to stand for

19:25

these two things are not a binary they exist on

19:27

a spectrum you know

19:29

some persuasion is in effect coercive and

19:32

some people may experience you

19:36

know coercion as a form of persuasion and where

19:39

you draw the line between the two is not you

19:41

know not entirely obvious what we encourage

19:43

the Supreme Court to do in our amicus

19:45

brief was to set out some of the

19:47

constitutional principles that underlie the distinction. You know

19:50

the first and most obvious principle that underlies

19:52

it is that you know intermediaries

19:54

for speech and their users

19:57

have a right to participate in foreign

20:00

of their own creation and their own making

20:02

free from government coercion. That's

20:05

the kind of most obvious principle. That's a

20:08

direct derivative of the First Amendment. The

20:10

second, which is a little bit less obvious, but we think

20:12

very important, is that the public actually

20:14

has an interest, a

20:17

constitutional one, in having a government that

20:20

is empowered to attempt to shape

20:22

public opinion through persuasion. And

20:25

that's a First Amendment interest because the public has a

20:27

right to hear what its government has to

20:29

say. And in a representative democracy,

20:31

majorities have a right to elect a government that

20:34

is empowered to govern. And that includes the power

20:36

to try to convince people of

20:38

the government's views, even when the

20:40

government takes a view, takes a position on a

20:43

contested issue. And then

20:45

the final constitutional principle that we

20:47

think these kinds of cases raise is the

20:50

threat that the government will be able to circumvent

20:53

constitutional limitations by

20:56

acting informally or surreptitiously,

21:00

especially when the government is communicating

21:03

with platforms behind closed doors.

21:06

The threat is that the government will be

21:08

able to effectively suppress speech without anybody knowing.

21:11

And without anybody knowing, it's very

21:14

difficult to hold the government accountable,

21:16

either politically or judicially through litigation,

21:19

to its suppression

21:21

of constitutionally protected speech. If

21:24

the court agreed with us and articulated

21:26

these three constitutional principles as underlying the

21:28

coercion test, that would by no means

21:31

resolve all of the uncertainty in the

21:33

application of that test. But

21:36

I think it would provide some guidance, which

21:38

is sorely needed because as with any totality

21:40

of the circumstances test, which I think the

21:42

coercion test will have to be, there's

21:45

murkiness that's going to depend on the facts. And

21:47

it would be great if the Supreme Court could

21:50

at least give some more guidance than what we

21:52

have had so far, which is coercion

21:54

on the one hand, persuasion on the other, which

21:57

unfortunately doesn't resolve hard cases.

22:01

Many thanks for that. Clay

22:03

Calvert, you have a really helpful piece, Persuasion

22:06

or Coercion, Understanding the Government's Position

22:09

in Murtha versus Missouri. You

22:11

published it on January 8th. You

22:14

note that Justices

22:16

Alito, Thomas, and Gorsuch dissented from

22:18

a decision postponing enforcement of the

22:20

Fifth Amendment's injunction. Justice

22:23

Alito worried that delaying enforcement will be seen

22:25

by some as giving the government a green

22:27

light to use heavy-handed tactics to skew the

22:29

presentation of views on a medium that dominates

22:31

the dissemination of views. Maybe tell us more

22:34

about what exactly the Biden administration was doing

22:36

that provoked Justice Alito's comment.

22:39

And then you really helpfully sum up

22:41

General Prologar's central thesis about drawing a

22:43

line between persuasion and

22:45

coercion, which I

22:48

won't summarize the whole thing, but you describe

22:50

it as being based on the idea

22:52

that so long as the government seeks to inform

22:55

and persuade rather than to compel, its

22:57

speech poses no First Amendment concerns. Tell us more about

22:59

her position, whether or not you agree with it. Sure.

23:03

So back to the Alito part, your first part of that question.

23:06

It simply illustrates the political divisiveness of

23:08

this case that conservatives and

23:10

liberals see it in very different fashion. I

23:13

think many conservatives see that

23:16

narratives that ran counter to

23:18

the Biden administration's stance on

23:20

COVID vaccines, mask mandates and

23:22

business shutdowns, election fraud are

23:25

being unfairly censored by

23:27

the government in this case. So that's

23:30

how many conservatives typically see it. Many

23:33

liberals would frame it on the other hand is

23:35

that the government is doing good here trying to

23:38

have platforms take down

23:40

misinformation, disinformation, falsities

23:44

regarding vaccinations,

23:47

misinformation efficiencies, and other

23:49

things. So I think that what

23:52

Alito was getting at is

23:54

postponing the Fifth Circuit's injunction

23:58

against enforcement. or

24:01

stopping to buy administration officials. And by the

24:03

way, there are hundreds, right? I mean, this

24:05

affects so many people. It's very broad, right?

24:08

That that essentially was a political

24:10

decision. So it's

24:13

a very politically divisive case. And to go

24:15

back to, I think one of my concerns

24:17

too, is exactly, I mean, Alex has the

24:19

terms exactly right. Persuasion versus coercion.

24:21

I think one of my fears is that

24:24

the court, all nine justices could adopt those

24:26

exact same terms, and this is the grayness

24:28

in the middle, and reach very different conclusions

24:30

about whether it was persuasion or

24:33

coercion. And on a court that as

24:35

we know today is six to three,

24:37

or wherever you wanna cut it, really politically divided,

24:40

and losing support from many people

24:42

in the population. You

24:45

know, a decision where they adopt the

24:47

same terms and same language and split

24:49

and disagree on it along political or

24:51

perceived political ideological lines, you know, that's

24:53

gonna be divisive and harmful for the

24:55

court. To

24:57

get back to Justice Preloger's, the Solicitor

25:00

General's brief that

25:02

she filed, she suggests that simply what

25:04

the Biden administration officials were engaging in

25:06

was nothing more than routine back and

25:08

forth, that they are

25:10

allowed to criticize, even

25:13

in strong terms, the

25:15

actions of social media platforms,

25:18

such strong criticism, using strong

25:20

language, even repeatedly, does

25:23

not rise, however, to the level of actual

25:26

coercion. In her mind, you have to actually

25:28

have a threat. It

25:30

either has to be an explicit threat

25:32

of an adverse consequence. In

25:35

other words, if you don't do this, if

25:37

you don't do something, there has to be

25:39

in direct relation to that, some negative or

25:41

adverse consequence that will befall. So

25:43

one thing that in this case, Missouri

25:47

and Louisiana have

25:49

argued is that section 230 was

25:52

kind of put into play during

25:54

some of the discussions by Biden

25:56

administration officials. Section 230 is the

25:58

federal statute that protects. platforms

26:00

from liability for

26:03

others content that others post. They're

26:06

not typically, again, there's some exceptions, but typically

26:08

the platforms are not liable for that. And

26:11

so what many conservatives feel is

26:13

that by putting Section 230

26:15

into play, that that was

26:17

a threat that unless you take down

26:20

this information that we don't like, Section

26:23

230 is going to be revoked

26:25

or repealed or somehow reformed in

26:27

a way that is not beneficial

26:30

to the platforms. So

26:32

I think that gives a little bit insight

26:35

into her brief that it was simply the

26:37

routine back and forth. She also

26:39

talks about the power of the bully pulpit a lot

26:42

that all presidents, whether it

26:44

was President Biden, but going back in time and

26:46

the brief does a good job of articulating about

26:48

six prior presidents who've used the power of the

26:51

bully pulpit to influence their

26:53

position and try to get their way. But

26:56

this again is routine. In other words,

26:58

for justices who like historicism or

27:01

take things over history, there's a historical

27:03

pattern of administrations

27:05

engaging in this type. So this is not

27:07

new. So that gives you a

27:09

little bit of insight, I hope, on her

27:11

brief in this case, on behalf of the federal government. Great

27:15

summary, very helpful, and thank you for helping us understand

27:18

it so well. David Green,

27:20

your piece is in jawboning cases.

27:22

There's no getting away from textual

27:24

analysis published on November 7th. You

27:28

note that if only direct coercion were

27:30

forbidden, the court could decide these cases

27:32

by looking for an explicit threat. But

27:35

you say the Supreme Court

27:37

rightfully recognized the unconstitutionality of

27:39

indirect coercion and set out

27:41

a test in Bantam Books, and you kind

27:43

of hopefully lay out the four

27:45

relevant factors in Bantam Books. One, word

27:47

choice and tone. Second, the existence of

27:49

regulatory authority. Third, whether the speech was

27:51

perceived as a threat, and

27:53

most importantly, perhaps, whether the speech refers

27:56

to adverse consequences. And might the court

27:59

stick with the Bantam Books? tests and where would

28:01

that lead the government in this

28:03

case? Yeah, so that

28:05

four-part test is a test that several of the

28:07

lower courts have used, but the

28:10

court in Bantam did not frame

28:12

it those way. The Second Circuit,

28:14

the Ninth Circuit, and even the

28:16

Fifth Circuit below in Murthy used

28:18

those four factors. And importantly, they're

28:20

not exclusive factors. I think they were

28:22

identifying them as among the most important,

28:25

but certainly not the only

28:27

ones. I think many of us who

28:29

follow this issue and have been following

28:31

it for a long time are really

28:34

thirsty for

28:37

some type of skeleton to hang

28:39

this analysis on. And

28:42

the four-part, some type

28:44

of four-part test seems

28:46

to give some shape to the

28:48

totality of circumstances analysis. But

28:51

I do think it's, and I think

28:53

that will be attractive to this court,

28:55

especially the members of this court who

28:57

like tests, who like multi-part tests. I

29:00

do think we'll see something come

29:03

out of the court that is less

29:05

amorphous than what we have

29:07

now. But I do think

29:10

there are other factors that are important,

29:12

and I'd like to see the court

29:14

look at those factors as well, what

29:16

are the things we talk about in

29:18

our brief we filed, our

29:21

power imbalances, sometimes the court. And

29:25

this might depend on who the governmental speaker is.

29:28

And even within the context of the

29:30

executive branch, there seems to be a

29:32

very qualitative difference between someone from the

29:34

White House making very strong requests

29:36

and somebody from the CDC, which

29:38

has very, very limited regulatory authority,

29:41

or someone from an agency

29:43

like CISA, which is inherently

29:45

advisory in its

29:47

functions. So when

29:50

you have something, the name plaintiff here

29:52

is the surgeon general whose job essentially

29:54

is to be sort of a public

29:57

scold on public health, it would

29:59

seem to be... odd to take out

30:01

the public scold part of the

30:03

job and it's uncertain what would

30:05

be left of the Surgeon

30:07

General's job if they weren't allowed to sort of

30:09

lecture everybody on public health

30:12

advice. I do think there

30:14

are two very interesting things happening in

30:16

this case. One is this doctrinal question

30:18

that we as lawyers are very interested

30:21

in. And I actually don't know that

30:23

there'll be a lot of dispute among

30:25

the court around this. And part of

30:27

that is because the totality of the

30:30

circumstances test is so flexible.

30:32

I do think we'll get a coalescing of

30:34

the justices around some type of framework, whether

30:36

it's those four factors or something based on

30:39

those four factors. In our brief,

30:41

we urge the court to really look at two

30:43

essential questions that those four factors help to answer.

30:46

One is the government's intent. Does the government have

30:48

an intent to

30:50

replace its editorial judgment

30:53

with that of the platforms? And the

30:55

second being the perception of the platform,

30:57

would a reasonable person perceive that they

30:59

really had no choice to

31:02

substitute the government's editorial decisions

31:04

for their own? The

31:06

second part, which is much more interesting, which the

31:08

court might not get to because they could just

31:11

remand, is actually how do you

31:13

apply that test to the numerous

31:16

very, very different interactions that took

31:18

place in this case.

31:22

I don't see us getting five votes

31:25

on most of those things just because,

31:27

again, stating a

31:30

multi-factor test is much far easier than

31:32

applying it. So I think it'll be

31:34

really interesting to see how

31:36

the court treats the individual examples.

31:39

I think if you read the amicus

31:42

briefs, there's a great range, those who

31:44

engage with the facts, there's a really

31:46

great range of whether, of which types

31:48

of interactions people think were permissible

31:51

cross the line from, I don't

31:53

even know if the lines have

31:55

between persuasion and coercion as much

31:57

so as permissible persuasion and impermissible.

32:00

Persuasion. The. A be

32:03

helpful distinction indeed. Well

32:05

on, let's not turn to

32:07

the final set of cases

32:09

are they're called O'connor Rak

32:11

Lives. Bruce. Has gone

32:13

to A and Lindy versus

32:16

Freed? The question is to

32:18

what degree can government officials

32:20

block or. Restricts.

32:23

People from commenting on their social media

32:25

accounts and there are saxon these cases

32:27

in one key and official was using

32:30

a private account created before he became

32:32

an official. in the other case upon

32:34

arrival of we have the opposite would

32:36

be accounts were designated as official government

32:39

accounts and the question is to what

32:41

degree ten are blocking or editing be

32:43

allowed? Alex and oh how do you

32:46

think we should think about these cases.

32:50

Or. That the most important I think

32:52

legal question presented by the cases is.

32:55

When. Public. Official use

32:57

of social media. Is

33:00

subject to the First Amendment which

33:02

is actually that a third option

33:04

question Unlike I'm not unlike the

33:06

main question an issue in the

33:08

Murthy cases, the question of when

33:10

a public officials who were interacting

33:12

with constituents are of furthering their

33:14

official duties using their social media

33:16

accounts. you know when or whether

33:18

and when am I The use

33:20

of those accounts is subject to

33:23

first limit limitations with the made

33:25

one that. We. Would care about

33:27

being the prohibition on. Our.

33:30

Own viewpoint discrimination because if the

33:32

First Amendment is held to apply

33:34

to public officials are using their

33:36

counts in this way, then they

33:39

can't silence the critics. Are

33:41

much in the same way that public

33:43

officials can't silence their critics in town

33:45

hall meetings or other it's traditional public

33:47

forums. What the plaintiffs in these cases

33:50

are arguing for is very similar to

33:52

what am I. The Night Institute was

33:54

arguing when it filed suit against a

33:56

former President Trump when he used his

33:58

Twitter account very much. An extension

34:00

of his office and began blocking

34:02

critics I'm Which Is and an

34:05

order. Forbidding. Public officials

34:07

from salaries in their critics are

34:09

in these forums and are you

34:11

on the basis of viewpoints. Unfortunately

34:13

one of the to circus the

34:15

sixth circuit in the decision below.

34:18

I'm in. one of the

34:20

decisions below adopted a very

34:22

formalistic understanding. Of. When

34:24

public official use of social media.

34:27

And is subject to the First Amendment

34:30

and on it essentially hell of that.

34:32

it's in a public officials in their

34:34

use of social meet our subject the

34:36

first minute only when. They

34:38

use. State

34:41

resources or have an explicitly

34:43

said out. An. Ad

34:46

duty. In regulation or

34:48

in law requiring them to

34:50

use social media in furtherance

34:52

of the official responsibilities and

34:54

those are very narrow circumstances.

34:56

Most public officials who engage

34:58

with the public using social

35:00

media are not doing so

35:02

because there is a law

35:04

that requires them to do

35:06

so and some use state

35:08

resources. On President Trump relied

35:11

on. A On

35:13

that you know official federal employees

35:15

that help him administer his account,

35:18

but many public officials, especially at

35:20

the local level, don't have the

35:22

resources rely on in their offices

35:24

to help administer their accounts. Even

35:27

if and even when those accounts

35:29

become an important tool of governments

35:31

or in an important and. I.

35:35

Avenue through which they disseminate

35:37

if important official information to

35:39

the public and so what

35:41

I would like. To. See

35:43

the court do is A. And.

35:46

The. Standard test the court users

35:48

to distinguish between state action in

35:51

private action another context which has

35:53

to look to see we know

35:55

whether the official I is as

35:58

eve A using. Their. Out

36:00

as a tool of governance, you know

36:02

whether and whether their use of it

36:04

is fairly attributable to the states. And

36:06

again, as with the Murthy case, the

36:09

legal lines here are a little bit.

36:11

Mysterious. Your arm of

36:13

the contest dependence. And.

36:16

And I understand the instinct

36:18

that some may have in

36:20

the face of. An.

36:22

Uncertain Totality Test. To.

36:24

Gravitate toward. You

36:27

know, A test that

36:30

it may be easier to administer but you

36:32

know loses some of the nuanced I understand

36:34

of. I think that be a mistake in

36:36

this context because it would be a road

36:38

map for public officials and to create echo

36:40

chambers in their online engagement with their constituencies.

36:43

which is now you're one of the most

36:45

important ways the public officials engage with the

36:47

public. That idea

36:49

of an echo chamber is powerful and

36:51

thanks also for the analysis of

36:53

the of the sixth circuit decision or

36:56

clade calvert. How. Would you look

36:58

at these to social media Texas. Sure,

37:02

I mean I agree that the

37:04

six circumstances really too limiting in

37:06

terms of citizen participation by making

37:08

it too hard to overcome that

37:10

state action hurdle essentially that they

37:12

have to be acting pursuant to

37:14

the or official duties in some

37:17

way to trigger state action. So

37:19

a bit in given is Alex

37:21

said this is how people communicate

37:23

today often with their public officials.

37:25

The representatives and government have been

37:27

to hinder that by say no,

37:29

there's no state action because. The

37:32

test we created limits it so

37:34

much that's gonna be very problematic.

37:36

So yes, well that's much. the

37:38

six circuit has a much more

37:40

bright line. or you acting pursuant

37:42

to your visual duties or apparent

37:44

duties. I'll wait when you operate

37:46

this website even though it appears

37:48

to be private that are you

37:51

doing it that way? That's a

37:53

very narrow as so. Yes, the

37:55

court will probably adopt much more

37:57

of a fatality. the circumstances test

37:59

With multi factors multiple factor, it'll

38:01

be more messy to apply, probably

38:03

much more subjective to apply if

38:05

you go back to the O'connor

38:07

Rak list as things that they

38:09

focused on a where things like

38:11

the appearance of the website I

38:13

do I have a dish yeah

38:16

that I'm using it. I've got

38:18

a picture myself at a government

38:20

event I posted my office location

38:22

I communicate with my constituents. A

38:24

for the purpose about it delivers.

38:26

How do I used my using

38:28

in a lot to communicate. To

38:30

with my constituents to convey information, solicit feedback

38:32

to interact with them or my use in

38:35

a much more in a private capacity. So

38:37

one thing I usually tell my students as

38:39

is nothing in these cases as as you

38:41

can't just have your own, your govern official

38:44

and I can have my own been a

38:46

social media account where I talk about movie

38:48

rejects right our my family ah in that

38:50

second a trigger state accept that the quest

38:53

is then once I start using it for

38:55

other purposes when do we get there So

38:57

again there's there's gonna be a lot of

38:59

gray area. There, so I agree.

39:01

The sixth circuit tested too limiting

39:03

given given the realities of how

39:06

people communicate with the representatives today.

39:08

Many. Thanks for that! Well.

39:10

We know turned to the

39:13

Night Institutes positions and you

39:15

filed. Really?

39:17

Comprehensive. Brief in the case, David

39:19

Greene. On. In both upon a

39:22

right was and when he. Where. You

39:24

argue that? When and

39:26

official chooses to mix government and

39:28

non governmental conduct an individual accounts,

39:31

they must accept the First Amendment

39:33

obligations to go with doing so

39:35

and the question apply. Well established

39:37

bands on viewpoint discrimination. Tell us

39:39

about that position and then tell

39:41

us about the case that's been

39:43

mentioned a few times which are

39:45

involved The Night for Some Women

39:47

Institute versus Trump which was a

39:49

lawsuit filed the end of the

39:51

Trump Administration. Involving. Whether

39:53

or not President Trump could ban

39:55

folks on Twitter and the court

39:57

ended up sending that case back.

40:00

The second circuit with instructions to

40:02

dismiss it. As. Moot. Yes,

40:04

I'm I'm happy the of happy

40:07

to talk about a takedown. A

40:09

brief and I can i ten

40:11

which we filed which we had.

40:13

he has a file jointly with

40:15

with nice and I am. I

40:17

Let me to say I actually

40:19

don't think that the gray area

40:21

is as gray and murky with

40:23

this test as it is with

40:25

the jawboning tests. And I see

40:28

because when you look at the.

40:30

It's a tremendously com in

40:33

practice for governmental officials to

40:35

use social media to do

40:37

their jobs ah, to make

40:39

official announcement, to have arms,

40:41

have the type of discussions

40:43

with constituents that they formerly

40:45

would have had at at

40:47

public gatherings. This is really

40:49

comment on. The only thing

40:51

that's unusual about is that

40:54

a some apple two things.

40:56

it's easily some them. also

40:58

like post. Photos. Of

41:00

their children which again is also

41:02

not completely. he's ah unusual I

41:04

in in other contexts and we're

41:07

what we really see a lot

41:09

of which I think is a

41:11

really dangerous manipulations the system or

41:14

officials who had who had campaign

41:16

accounts which they consider to be

41:18

private and then once they get

41:20

elected office they use that campaign

41:23

accounts to then essentially could do

41:25

their jobs Odds to talk about

41:27

their accomplishments to talk to, discuss.

41:30

The issues to to make announcements

41:32

and to communicate with their constituents.

41:34

And then they claim when they

41:36

start to silence their critics are

41:38

on those sites that this is

41:40

still part of campaigning. I think

41:42

that's a very dangerous practice and

41:45

I think that's something that the

41:47

court can directly say. Is

41:50

that they're that? they're not. They're

41:52

not acting as candidates, then up

41:54

as they're acting as officials. And

41:56

that's really was the most common

41:58

scenarios we see. if you I think the

42:00

type of scenario

42:03

that's raised in the Linky

42:05

versus Free case, where

42:07

someone really seems to have a

42:10

private account that very occasionally and rarely

42:12

uses it for governmental purpose, is actually

42:14

the outlier in what we see in

42:16

these cases. So I'm

42:19

hopeful that this actually presents a case

42:21

where the court could actually give a

42:23

fair amount of clarity. I think the

42:26

Ninth Circuit's test actually really reflects and

42:28

looks at the factors that are really

42:30

obvious and common at how government officials

42:34

use the interactive spaces of

42:36

their social media accounts. And I think the Sixth

42:38

Circuit says it just doesn't reflect it at all.

42:41

It's far too narrow. It captures a tiny slice

42:43

of how government officials use it.

42:48

Alex's case that they brought at night against

42:50

Trump had both

42:52

of these issues, right? You had

42:55

the issue of whether Trump's previously

42:57

existing account, real

42:59

Donald Trump, could be,

43:02

was being used for the purposes

43:04

of the presidency. And

43:07

there there was actually an official account,

43:09

the at POTUS account, that

43:11

he rarely used. But it was

43:14

very clear from the facts of

43:16

that case that the president was

43:18

conducting the business of the presidency

43:20

over primarily Twitter. He

43:22

was firing people over

43:25

Twitter. That was the

43:27

only place it was over at the real

43:29

Donald Trump account. That was the only place,

43:32

for example, that that was being publicly

43:34

done. So

43:36

in those cases, there were some really

43:38

obvious examples there. Knight did a really

43:41

excellent job of actually having discovery in

43:43

this case and finding

43:45

out some of the details about how those

43:47

decisions were made and things like that that

43:49

really support that idea. And then the second

43:51

part of the case, which it would have

43:53

been really, which the lower courts I

43:55

thought dealt with really well was once you once there

43:57

is a first member right, then what does it mean?

44:00

what does that limit? And it

44:02

certainly had a minimum limits viewpoint

44:04

discrimination. Whether it

44:06

also limits content based decisions would

44:08

really I think depend then on

44:10

a very difficult factual scenario about

44:13

whether the forum

44:15

that created is a non public

44:17

forum, is some type of limited public forum or

44:19

some type of public forum like it says is

44:22

a designated public forum that's much more and

44:24

I think that is the much more fuzzy

44:28

area. I think it's unlikely the court

44:30

could take that up in these cases.

44:33

I think it's far more likely that

44:35

the court will pick a test and

44:37

then remand both of these cases for

44:39

the court's supply, apply those

44:42

tests. And I think looking at these

44:44

all these cases really broadly what you're

44:46

really seeing is the

44:48

Supreme Court really need to understand

44:50

content moderation really need to understand

44:52

what this process is of

44:55

how things end up being

44:58

seen by the public on social

45:00

media. These cases really

45:02

deal with user controls how a user

45:04

can control their own account and the

45:06

other cases really deal with how the

45:09

platforms make those decisions and what's critical

45:11

the courts really need to understand this

45:13

and I hope they really understand this

45:16

in a way they don't what

45:18

we frequently see in technology cases the

45:20

court these very sort of pithy laugh

45:22

lines of the oral arguments like you

45:24

know we're not the best nine

45:26

people to make these decisions and

45:29

I really hope we don't get I hope we're

45:31

done with that and we really get the

45:33

court really seriously engaging with something that's actually understandable

45:36

and which they've had a ton of help

45:38

with in the Vika space in these cases. Many

45:42

thanks for that and for that really helpful

45:44

distinction between user control and how platforms make

45:46

the decisions. Well it's time

45:48

for some closing thoughts in this

45:50

great discussion and Alex

45:53

Abdo in moving out the

45:56

Trump Twitter case which which Knight

45:59

brought Justice Thomas said

46:01

that applying old doctrines

46:03

to new digital platforms is really straightforward

46:05

and the justices will soon have no

46:08

choice but to address how are legal

46:10

documents apply to highly concentrated. Private the

46:12

own information infrastructure such as digital

46:15

platforms one important

46:18

inside i've gotten from this great discussion

46:20

is that it's impossible to apply a

46:22

single. Simple rule

46:25

to all of these cases such

46:27

as no viewpoint discrimination in any

46:29

circumstances but each of you

46:31

has distinguished among different uses of the

46:33

platforms by the platform themselves and by

46:36

users in a context specific way as

46:38

you try to identify some broad principles

46:40

for the justices to apply in

46:43

all three. Categories of

46:45

cases what would you say. It's

46:49

a really great question and maybe i'll even step

46:51

back and answer the question at an even higher

46:53

level and this goes. You

46:57

know maybe you can put this in the in the

46:59

bucket of helping David answer the

47:01

impossible question you gave him earlier which is.

47:04

Kind of defend texas is in florida's

47:06

laws i understand

47:09

what i think motivated justice

47:11

thomas in writing that concurrence

47:13

and what motivated some of

47:15

the other justices. I'm

47:17

in implying in

47:19

the lead up to the gonzalez case that

47:21

they were interested in revising. Section

47:23

the judicial interpretation section two thirty

47:26

and what i think you motivate that

47:29

concern is the fact that

47:31

a relatively small number of

47:34

companies seem to exercise. A

47:37

significant amount of control over what

47:39

can be said online today i

47:41

don't think that's unique to this

47:44

moment i think media organizations have

47:46

also played historically and outside role

47:48

in deciding. What views get

47:50

aired publicly and spread among the public

47:52

but this is the latest version of

47:56

that example where relatively

47:58

small number of companies. companies seem to

48:01

have outsized power over public

48:03

discourse. And

48:05

I think that is maybe the

48:07

most charitable explanation for why regulators

48:09

are targeting the social media platforms

48:11

for essentially common carriage

48:13

laws, as David was saying earlier,

48:15

must carry laws. I think that

48:18

effort is misguided for the reasons

48:21

David was saying earlier. These platforms

48:23

are not in fact the

48:25

public square. They are privately curated

48:27

spaces for people to join in

48:29

communities that the platforms have a

48:31

heavy hand in organizing

48:35

and that people go to in large

48:37

part because of the benefit they see

48:39

in the close curatorial control that the

48:42

platforms exercise over those

48:44

very different speech environments. Most

48:47

people don't want to go on Facebook and see hate

48:51

and toxicity and pornography.

48:55

They go on there because Facebook spends

48:57

an enormous amount of money curating

49:03

communities and conversations that are different

49:05

than those. I'm

49:10

a critic of the platform. I don't think they're serving

49:13

democracy especially well at the moment,

49:16

but I don't think the answer to the problem

49:18

of concentration of power over public discourse is to

49:20

concentrate that power in the hands of the government.

49:23

I think if you're genuinely concerned

49:25

about that concentration of power, then the

49:28

solution is to attack the

49:30

concentration, to look

49:33

at potential legislative solutions that make

49:35

it easier for competitors to come

49:38

into the market that more closely

49:40

align the incentives of the platforms

49:42

with the interests of their users.

49:47

Laws directed to competition or interoperability or

49:50

privacy or transparency I think are a

49:52

much better model to pursue

49:54

than laws that are directed at content

49:58

moderation directly. It

50:00

may be that when the court took the Gonzalez

50:02

case, it had that kind of buyers remorse that

50:04

David was gesturing at. I really

50:06

hope that's not what motivated the court into taking

50:08

the net

50:11

choice cases. And I actually don't think that's what motivated

50:13

the court into taking those cases. I

50:15

don't think it had a choice. It had two very

50:17

conflicting circuit decisions. One, the

50:19

Fifth Circuit that was in

50:21

outright conflict with the very long line of Supreme Court

50:23

cases. I don't think it really had a choice but

50:26

to take those cases. Hopefully,

50:28

but hopefully I'm predicting correctly that the

50:31

court will invalidate the Muskeri provisions as

50:33

I think it should. So

50:35

if I have a broad takeaway,

50:37

it's that I

50:40

agree with David that content moderation is

50:42

not generally where legislators should be focusing

50:44

their efforts. I'd much prefer that they

50:46

focus on some of the structural problems

50:48

of competition in the social media market.

50:51

Thank you so much for that great and

50:53

very brand-dicean insight about if a central

50:56

problem is concentrated power in the hands

50:58

of the platforms, don't solve it by

51:00

concentrating power in the hands of the government. Clay

51:03

Calvert, final thoughts and are there

51:06

any overarching principles you'd urge the

51:08

justices to consider that unite all

51:10

of these cases? Well,

51:13

let me just add something to which Alex said about

51:15

the split of authority between the Fifth Circuit and

51:18

the Eleventh Circuit on the

51:20

Net Choice cases, the Fifth Circuit, which

51:22

upheld, it's important to note, Texas

51:24

laws and said they were perfectly fine. That

51:27

decision was bizarre from any

51:29

traditional First Amendment analysis. It

51:32

really reeks of a text history and

51:34

tradition approach, which is designed to appeal.

51:37

Jeffrey, as you started out, to Justice Thomas,

51:40

increasingly the conservative justices in

51:44

the Second Amendment cases at least are all

51:46

about what does the text say, what's the

51:48

history, and what's the tradition of this. And

51:50

the Fifth Circuit, the majority

51:52

opinion, really went down a text history

51:54

tradition approach. That creates

51:56

an opening if Thomas wants to

51:58

go there and maybe... pull

52:01

Alito in, to

52:03

take a very different analysis than we

52:05

typically see in First Amendment cases, which

52:07

is, you know, is it speech? Does

52:10

the speech fall into an unprotected category? If it

52:13

doesn't, then it's protected. And then if

52:15

it's content-based law, you apply strict scrutiny.

52:18

If it's content neutral,

52:20

you apply intermediate scrutiny. The Fifth

52:22

Circuit's analysis really didn't do that. And I think

52:24

it really helped to tee it up if

52:27

the conservative justices want to go there. The

52:29

bottom line, I would say, to

52:31

go do big picture principles here

52:33

is something somebody else mentioned earlier,

52:35

the Reno versus ACLU case, maybe

52:37

David mentioned that, from 1996,

52:41

where the Supreme Court, or 97, the

52:43

United States Supreme Court said that we're

52:46

going to treat the Internet speakers like

52:48

speakers in the print medium and not

52:50

narrow their First Amendment rights like we

52:52

have done with broadcasting and cable. And

52:56

so I think that's another issue here. Are

52:58

they going to revisit that major principle? I

53:00

don't think they'll reverse that. Some justices, again,

53:02

Thomas might want to go there. I don't

53:04

think that's going to happen. The

53:07

whole NetChoice cases are all about

53:09

the ability of private businesses to

53:11

create their own speech-based communities that

53:13

they want to enforce themselves. And

53:15

now the government is telling them,

53:17

mandating, you must host speech that

53:19

you don't want to. So

53:21

they're interfering with that. So one of the key things is

53:24

going to be, there's a

53:26

case called Miami Herald versus Tornillo from

53:29

1974, which basically said the Supreme

53:31

Court said, you cannot print newspapers,

53:33

cannot be compelled to host replies

53:36

from candidates for public office that

53:38

are attacked. And Florida had

53:40

a statute saying that, well, OK, if you're

53:42

a candidate for public office and you're attacked

53:44

by the Miami Herald, as Tornillo was, he

53:46

gets free space. And the Supreme

53:49

Court struck that down and said, no,

53:51

that violates the rights of editorial control

53:53

and discretion that a print newspaper has.

53:56

And that principle comes up in this case,

53:58

and it's not a clear, square analogy.

54:00

They don't, they're different, right? Print newspapers are

54:02

different than social media platforms, but that's going

54:04

to be something that the court's going to

54:06

have to wrestle with here. So I'll stop

54:08

there. Thank you very much. David

54:11

Green, last word in this wonderful discussion

54:14

is to you, we're almost at

54:16

time, so if you could keep it tight

54:18

and inspire our listeners by bringing together the

54:21

big themes that you think should guide

54:24

the court as they consider these important cases. Yeah,

54:27

I think it's useful just looking at

54:29

these five cases together to look

54:31

at them as examining different facets

54:33

of governments and interaction with social

54:35

media. So the net choice cases

54:38

really are government is regulator. Does

54:40

government have any type of regulatory

54:42

role over the content matter ration

54:44

process? I think we all

54:46

think the answer is no or very, very

54:48

limited role. On the other

54:51

end are the

54:53

government social media accounts. Now you

54:55

have government as a user of

54:57

social media. What is the government's role?

54:59

Does it have, does it,

55:01

how do we treat government when it's a

55:03

user of social media? Does it still have

55:06

the limitations we typically place on

55:08

government when it participates

55:10

in other forums? So to

55:13

what extent does the public forum doctrine

55:15

now apply to those? And then in

55:17

the middle really interestingly is the jawboning

55:19

cases, both MURFI, the online cases, as

55:21

well as the other jawboning case, the

55:23

court has taken NRA versus follow, which

55:25

doesn't arise in the internet

55:28

context. But again, what you have there

55:30

is to what extent, what

55:32

is the government's role where it's sort

55:34

of standing in the place of other

55:36

users. And I think the important thing

55:38

with the MURFI case is that the

55:40

platforms get a ton of feedback, not

55:43

just from the government, but from

55:45

their own users and from some

55:48

trusted partners and civil

55:50

society. And can the

55:52

government play on equal grounds in that

55:54

role? Or is the government again limited

55:57

by, you have to function a

55:59

limited function? And so what I

56:01

think is interesting about all these cases altogether

56:03

is really bringing them in totalities You really

56:06

have to a full spectrum of what is

56:08

the government's proper role? as

56:10

it participates with

56:13

with social media content moderation Beautifully

56:17

put and you bring us right in on time

56:20

Alex Abdo clay Calvert

56:22

and David Greene thank you so much

56:24

for an illuminating and Uplifting

56:27

discussion of the court's role in Discussing

56:31

the First Amendment and social media Alex

56:34

clay David. Thank you so much for joining Thank

56:36

you friends for taking an hour in the middle

56:38

of your day to learn about the Constitution and

56:40

look forward to see you again So thank you

56:42

Jeff. Take care. Thank you This

56:46

program was streamed live on January 16th 2024

56:50

today's episode was produced by Lana Ulrich Tanea

56:52

Talbert and Bill Pollack who's engineered by Kevin

56:54

Kilburn and Bill Pollack Research

56:57

was provided by Samson Mastashare Cooper

56:59

Smith and Yara DeRaece We

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the people friends. I'm so excited that on

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