Podcast | Unpacking the Supreme Court’s Tech Term

Podcast | Unpacking the Supreme Court’s Tech Term

Several recent cases before the Supreme Court have raised important questions at the intersection of technology and the First Amendment. In this episode, Alex Abdo of the Knight First Amendment Institute, Clay Calvert of the American Enterprise Institute, and David Greene of the Electronic Frontier Foundation, join for a conversation exploring key tech cases, including Netchoice v Paxton, Murthy v. Missouri, Lindke v. Freed, and O’Connor-Ratcliff v. Garnier. Jeffrey Rosen, president and CEO of the National Constitution Center, moderates. This program was streamed live on January 16, 2024, as an America’s Town Hall.

Hello friends I'm Jeffrey Rosen President and CEO of the national Constitution Center and welcome to We The People a weekly show of Constitutional debate the national Constitution Center is a nonpartisan Nonprofit chartered by Congress to Increase awareness and understanding of The Constitution among the American People there are several cases before The Supreme Court that raise important Questions at the intersection of Law and Technology in this episode I was honored To have Alex ABDO clay Cal and David Green join me for a wide- ranging Conversation exploring the key Tech Cases before the court this term this Episode was originally aired on America's town hall please enjoy the Conversation this is the beginning of Our 2024 winter Town Hall season we've Got some great programs coming up Including conversations on David Hume Harriet Tubman Abraham Lincoln the state Of American democ And more I'm thrilled to share as well That on President's Day I'm launching my New book and I can't wait to share it With you it's called The Pursuit of Happiness how classical writers on Virtue inspired the lives of the Founders and defined America uh Jeffrey Goldberg the editor-in-chief of the Atlantic will join me in a conversation

At the NCC on February 19th and then We'll be uh often running to talk about It throughout the winter so excited to Talk with you about the pursuit of Happiness and this wonderful moral Philosophy that inspired the founders to Think of Happiness not as feeling good But being good not the pursuit of Pleasure but the pursuit of virtue we Will have a great discussion today about A crucial topic and that is technology And the future of the First Amendment The Supreme Court is hearing a series of Important cases that may redefine the Nature of First Amendment rights online And we've convened a Dream Team to help Us think through the issues in the cases Alex ABDO is Inaugural litigation Director of the KN First Amendment Institute at Columbia University before That he worked at the ACLU and uh is a frequent commentator on The First Amendment clay Calbert is Non-resident senior fellow in technology Policy studies at the American Enterprise Institute he's also a Professor of law Emeritus at the Levan College of Law and brechner eminent Scholar emeritus at the College of Journalism and communication those are Both at the University of Florida he's Written many uh books and articles uh And is the author of The Textbook mass Media law and also author of Voyer

Nation Media privacy and peering in Modern culture and David Green is senior Staff attorney and civil liberties Director at the Electronic Frontier Foundation he's also an adjunct Professor at the University of San Francisco School of Law he has Significant litigation experience on on The First Amendment and was lead staff Counsil for the first amendment project Where he worked on many cases including Bunner versus DVD CCA it's an honor to Welcome you Alex ABDO clay Calbert and David Green in our conversations you've Helpfully defined the issues that we Have to talk about by dividing the cases Into three broad categories first there Are the two net Choice cases which Raised the question does the First Amendment protect social media's Companies's content moderation decisions Second there's the job boning decision Murthy versus Missouri and the question Is can the government pressure social Media companies to take down or hide Content and finally we have linky and Okor Radcliffe two cases that rais the Important question can government Officials block private citizens on Social media let's begin with the net Choice cases does the First Amendment Protect social media's companies content Moder ation decisions this involves two Laws from Texas and Florida Alex ABDO

Why don't you tell us what those laws Say and broadly whether or not you think They are constitutional sure I'll start By saying it's great to be here Jee Always a pleasure to talk about the Constitution uh with you so these laws Differ in their particulars but at the Highest level both Texas's and Florida's Laws do two things first they limit the Ability of social media platforms to Take down speech that the platform or Speech or users that the platforms would Prefer not to um leave up and they also Require the platforms to disclose a Significant amount of information about Uh how they work and about uh decisions They make to take down or suppress um User accounts or user content to get a Little bit more specific uh Texas's law Um uh the uh has a must carry provision That forbid social media platforms from Uh censoring users on the basis of Viewpoint so a platform um subject to That law could not for example take down Speech on the basis of its disagreement With that speech if it for example um Wanted to take down what it considered To be disinformation about some Particular topic that would likely Violate Texas's law because that would Be a removal of speech on the basis of Viewpoint um Florida's law is a little Bit different it forbids the platforms From censoring candidates for office um

And from censoring journalistic Enterprises so it's not as broad a must Carry provision as as Texas is but it is Nonetheless a must carry provision in That it requires platforms to carry Again certain accounts or speech that They would prefer not to um and you know These two different elements um of each Of the laws I think raise slightly Different questions for the Supreme Court to resolve um I'll I'll you know Put my cards on the table just quickly So folks know you know where I am and I'll give a little bit of explanation I Think both of the mus carry provisions Of the laws are unconstitutional because I think they override the platform's own Editorial decisions about the speech That they want to leave up or take down And the Supreme Court has recognized in A long line of cases that the government Needs a very very good justification Before it can force uh individuals or Companies to carry speech uh that they Would prefer uh not to carry and I don't Think either of the states has come Anywhere close to justifying their must Carry Provisions I think the Transparency provisions of the law um Are subject generally to a slightly Different constitutional framework Because the Supreme Court has um said That commercial disclosures so long as They are limited to the compelled

Disclosure of purely factual and Uncontroversial information about Commercial products um can be Constitutional if the government has um Has Justified them and if they do not Impose an undue burden on speech I think There's a decent argument that uh at Least one of Texas's uh transparency requirements Satisfies that framework and I'm happy To get into the specifics later um I Don't think the the Florida provision That is before The Supreme Court Satisfies that um even that lower Standard of view because Florida's uh Transparency requirement um is extremely Burdensome and you know again I don't Think satisfies even the lower level of Scrutiny the Supreme Court has set out For commercial for commercial Disclosures there's more in the details There but I'll start out at the high Level thank you for that very helpful Introduction to both cases and for Distinguishing between the Texas and Florida law which as you note uh differ In the amount of disclosure that they Require you suggest that Florida will Require a huge amount of uh notice and Texas lesso clay Calbert in your piece Friends of the Court Friends of the First Amendment exploring amicus briefs For for platform's editorial Independence which you published at the

End of December you really helpfully Summarized the major amicus briefs and Talk about their contribution to what The effects of the decision would be Starting with the Anti-Defamation League's brief which says that the the Cases would unconstitutionally deprive Social media platforms of content Moderation tools they urgently need uh Maybe tell us more about the highlights From from some of those other briefs That you discuss in that piece and Broadly your take on the cases sure so Uh I agree with Alex on the first part I I believe that the uh content moderation Provisions or the must carry Provisions As we're referring to them are going to Be declared uh Unconstitutional uh really we can think Of this as a as a right not to speak Case is another way of thinking it that The Supreme Court is recognized not only That the First Amendment explicitly Protects freedom of speech but also the Right not to be compelled by the Government to host objectionable speech So that's one way of thinking about the Content moderation or must carry Provisions that really they are is a Right not to speak case and you're Compelling social media platforms to Host content that they otherwise would Not that violates their terms of use or Terms of service uh so in terms of those

Briefs what the Anti-Defamation League Was really concerned with is the Proliferation of hate speech racist spe Speech anti-semitic speech uh on the Internet and and as Alex was suggesting That the Viewpoint prohibition basically You can't remove somebody based upon Their Viewpoint what the Anti-Defamation League is suggesting then is that if Somebody has a racist hateful Viewpoint Uh you couldn't remove that type of hate Speech under the terms of Texas's Provision as I as as I think the they Make clear the ADL makes clear in that Case Anti-Defamation League uh other Provisions the media law resource Center Focuses on this notion of the Marketplace of ideas uh and that uh Platforms have a very important role to Play as Gatekeepers in the marketplace Of ideas the marketplace of ideas of Course is the is the underlying notion That uh Fair competition free and Fair Competition of ideas will produce the Truth uh in our society uh and that Requires winnowing away or whittling Away at false ideas and so what the Media law Resource Center focuses on and Its brief is this notion that platforms Actually play a very vital role in this Process by discarding or Jing some Speech and some users uh that really Don't go to that goal of producing uh The best test of Truth or or the best

Ideas uh another one of the briefs was Filed by National Security Experts uh And that particular brief was very Concerned about how extremist uh Terrorist organizations uh lurk and Proliferate uh on social media platforms And that both the Florida and Texas laws Would hinder and hamper the ability of Social media platforms uh to remove such Speech that may threaten and jeopardize Uh National Security interests uh other Briefs focus on the question of our Platforms common carriers and the answer To that is no they're simply are not Common carriers so there were multiple Uh Friend of the Court briefs filed uh In this case on behalf of or neutrally Theet choice in Ccia thank you so much for that and for Summarizing the position so well uh D David Green um in the spirit of uh the NCC can you make the strongest argument In favor of the constitutionality of the Texas laws uh which at least claim to be Attempting to hold the platforms to First Amendment standards and refusing To allow them to discriminate on the Basis of content or to ban speech on on That basis and then give us a sense you You've talked about how for several Terms now folks have been saying that uh The court is eager to say something About social media and content Moderation might these particular cases

Be that occasion and if so what might The court Say well you've given me the hard one Trying to trying to defend these uh laws I've been I've been writing about how Wrong these efforts are since before Texas and Florida um but let me just say This I think the only way to defend the Best defense of these laws is to Actually have a view of social media That doesn't reflect what social media Actually is so I think the best defense Of these laws is that social media is Are sites that are open for anybody Where people can freely publish um to The audience of their choice um and and Because of that there's some type of of Function that guarantees uh people Access That really is the whether you frame That as common carriage or or something Else um I don't know but I think that's At least sort of the best the best Defensive framework I think that fails Though because first of all that's not Really what social media is social media Always has been um really from its very Inception been a curated process um and These laws actually directly attack and And really you could say are most Concerned with recommendation system Um which are really inherently not open And passive and free flowing but really Controlled top down by in a very typical

Editorial editorial function so I have a Hard time Defending the the mus carry uh the mus Carry Provisions uh here I I in terms of What I think um why I think the court is Interested in this topic I I think we've Seen several efforts over the last few Terms by the court to want to say Something about the current state of First Amendment and the internet and Maybe social media in particular and They seem to have the past really chosen Bad cases to do that and then when they Finally get into the cases they end up Going someplace else with them and I Think we probably saw that most clearly Last term with um uh Gonzalez versus Google and TNA versus Twitter where they Seem to have taken these cases you to Finally say something about section 230 Um and maybe even say something about um First Amendment rights of of uh social Media companies um and then realized I Think very once they got into you the Briefing and look at the cases closely That the cases really presented a poor Opportunity uh for that and they and They dodged the issue and just as they Had dodged the issue largely um in in Cases in previous terms here I think you They've taken five cases and we'll talk About the other ones later and I really Think they're hoping that maybe at least One of them will give them the

Opportunity to say something you know I With this court there's always the Possibility than wanting to uh take a Closer look at a case decided that has You been seen to be established law and So I don't know if this there are at Least one or two justices on this court Who want to reconsider the seminal Holding in ACLU versus Reno that uh that We treat online speech in an unqualified Manner that it's not treated it's not Considered exceptional the way that Broadcast radio and television were Considered um exceptional and again I That's not it's not an issue that's Being it's not an argument that's being Directly pushed by anybody in these Cases but I I wouldn't I wouldn't Completely discount at least one Justice Wanting to say say something about that So I do think that these cases really Will it's it's going to be difficult to Avoid the first First Amendment issues Um in these cases and so I I think we'll Find we'll find out something about what The court Thinks many thanks for that um all right Well let's turn now to the next uh case Murthy and Missouri the question is Whether the government efforts to Pressure social media platforms to take Down speech often referred to as jaw Boning violates the First Amendment the Biden administration had uh talked to

Pressured uh or coerced depending on Your view the companies to take down Speech involving covid uh disinformation As well as some election disinformation And the question is when if at all that That violates the First Amendment um Alex ABDO uh tell us about that case and Why you think that the court should make Clear that claims of unconstitutional Jaw boning should be evaluated according To a coercion test that the court Introduced in a case called bantom books Well let me start there you know that is One of the um hardest conceptual parts Of this case is just figuring out what The right legal framework is for a Principle that seems obvious and the Principle that seems obvious is the Government is not permitted to censor um Individuals or you know a censor views Or speech um directly through Legislation or through um you know the Exercise of His official power and the Supreme Court made clear in the Bantam Books case in 1963 that the government Do that indirectly either you can't do It through informal government action That um is designed to have the effect Of of you know suppressing views and the Test that the Supreme Court gestured at In Bantam um is the co you know what we Think of as the coercion test it said That um the government cannot coers uh Private intermediaries for speech in

That case it was book distributors uh Into uh taking down protected speech um And that the Supreme Court hasn't said Anything about that test in the 60 years 61 now I suppose uh since bantom books And the lower courts have applied a kind Of smattering of different legal tests To this question and you know to my mind This is a good opportunity for the Supreme Court to clarify you know Constitutional Doctrine because it's a Little bit unclear there are some uh Circuits that apply the coercion test But there other circuits that apply a State action test um from Blum versus Jety which was not a First Amendment Case it was a case about uh when Governmental coercion or encouragement Reaches the point that you can actually Um hold uh the government accountable For the private action of private actors Um you know it's in other words the Question of when private action becomes State action which is also a really Important question but it's a very Different one than the question of when The government violates the first Amendment by um you know coercing Private actors into suppressing speech So you know it's an important Opportunity for the court to Clarify um the doctrine that applies and To give guidance to to lower courts Because even if the court settles on

Coercion versus persuasion which again Is the kind of test that L course have Understood Bantam to stand for these two Things are not a binary they exist on a Spectrum um you know some persuasion is In effect coercive and some people may Experience um um you know coercion as a Form of persuasion and where you draw The line between the two is not you know Not entirely obvious what we encourage The Supreme Court to do in our ambigous Brief was to set out some of the Constitutional principles that underly The distinction um you know the first And most obvious principle that Underlies it is that you know Intermediaries for speech and their Users have a right to participate in Forums of their own creation and their Own making free from government coercion Um that's the kind of most obvious Principle that's a direct derivative of The F of the First Amendment the second Which is a little bit less obvious but We think very important is that the Public actually has an interest a Constitutional one in having a Government um that is empowered to Attempt to shape public opinion through Persuasion um and that's a First Amendment interest because the public Has a right to hear what its government Has to say and in a representative Democracy majorities have a right to

Elect a government that is EMP powerered To govern and that includes the power to Try to convince people um of the Government's views you know even when The government takes a view takes a Position on on a contested issue and Then the final constitutional principle That you know we think these kinds of Cases raise is the threat that the Government will be able to circumvent Constitutional limitations by acting Informally or c I iously um especially When the government is um communicating With platforms behind closed doors the Threat is that the government will be Able to effectively suppress speech Without anybody knowing and without Anybody knowing uh it's very difficult To hold the government accountable Either politically or judicially through Litigation to you know its suppression Of constitutionally reected speech um if The court agreed with us and articulated The these three constitutional princip As underlying the coercion test that Would by no means resolve all of the Uncertainty in the application of that Test um but I think it would provide Some guidance which is sorely needed Because as with any totality of the Circumstances test which I think the Coercion test will have to be um there's Murkiness it's going to depend on the Facts and it would be great if the

Supreme Court could at least give some More guidance than what we have had so Far which is coercion on the one hand Persuasion on the other which you know Unfortunately doesn't resolve hard Cases many thanks for that uh Klay Cal You have a really helpful piece Persuasion or coercion understanding the Government's position in Mera versus Missouri you published it on January 8th You note that uh justices Alo Thomas and Gorsuch dissented from a decision Postponing enforcement of the fifth Amendments injunction Justice Alo Worried that delaying enforcement will Be seen by some as giving the government A green light to use heavy-handed Tactics to skew the presentation of Views on a medium that dominates the Dissemination of views maybe tell us More about what exactly the Biden Administration was doing that provoked Justice alto's comment and then you Really helpfully sum up General prar Central thesis about drawing the line Between persuasion and coercion which I Won't summarize the whole thing but but You describe it as being based on the Idea that so long as the government Seeks to inform and persuade rather than To compel its speech poses no First Amendment concerns tell us more about Her position whether or not you agree With that sure so so back to the Alo

Part your first part of that question uh It simply illustrates the political Divisiveness of this case uh that Conservatives and liberals see it in Very different fashion uh I think many Conservatives see that uh narratives That ran counter to the B Administration Stance on covid vaccines mask mandates And and business shutdowns election Fraud are being unfairly censored uh by The government in this case so that's That's how many conservatives typically See it uh many liberals would frame it On the other hand is that the government Is doing good here trying to uh have Platforms take down misinformation Disinformation falsities uh regarding uh Vaccinations U vaccine Efficiencies uh and other things so I Think that what Alo was getting at is Postponing the fifth circuits injunction Uh against enforcement uh or stopping The Biden Administration officials and There there by the way there hundreds Right I mean this affects so many people It's very broad right uh that that Essentially uh was a political decision Uh so it's a very politically divisive Case and to go back to I think one of my Concerns too is is exactly I mean Alex Has the terms exactly right you know Persuasion versus coercion I think one Of my fears is at the court all nine Justices could adopt those exact same

Terms and this is the greyness in the Middle and reach very different Conclusions about whether it was Persuasion or coercion and on a court That as we know today is is six to three Orever you want to cut it really Politically divided and losing support From among many people and the Population uh you know a decision where They adopt the same terms and same Language and split and disagree on it Along political or P perceive political IDE ideological lines you know that's Going to be divisive and harmful for the Court uh to get get back to Justice Preer uh the solicitor General's uh Brief that she filed she she suggests That simply what the Biden Administration officials were engaging And it was nothing more than routine Back and forth uh that they are allowed To criticize uh even in strong terms uh The actions of social media platforms uh Such strong criticism using strong Language even Repeatedly uh does not rise however to The level of actual coercion in her mind You have to actually have a threat uh it Either has to be an explicit threat of An adverse consequence uh in other words If you don't do this if you don't do Something there has to be in direct Relation to that some negative or Adverse consequence that will befall so

One thing that in this case uh Missouri And Louisiana uh have argued is that Section 230 uh was kind of put into play During some of the discussions by Biden Administration officials section 23 is The federal statute that protects Platforms from liability uh for others Content uh that others post they're not Typically again there's some exceptions But typically the platforms are not Liable for that and so what many Conservatives fear is feel is that by Putting section 230 into play that that Was a threat that unless you take down This information that we don't like uh Section 230 is going to be revoked or Repealed or somehow reformed In a way that is not beneficial uh to The Platforms so I think that gives a little Bit uh insight into her brief that it Was simply the routine back and forth uh She also talks about the power of the Bully pulpit a lot uh that all Presidents uh whether it was President Biden but going back in time and the Brief does a good job of articulating About six prior presidents who've used The power of the bully pulpit uh to Influence their position and try to get Their way that this again is routine in Other words for justices who like Historicism uh or take things over History there's a historical pattern of

Of administrations engaging in this type So this is not new uh so that gives you A little bit of insight I hope on on on Her brief in this case on behalf of the Federal government great uh summary very Helpful and thank you for helping us Understand it so well uh David Green in Your piece is in jawboning cases there's No getting away from textual analysis Published on November 7th you note that If only direct coercion were forbidden The court could decide these cases by Looking for an explicit threat but you Say the Supreme Court rightfully Recognized the unconstitutionality of Indirect coercion and set out a test in Bantam Books and you kind of helpfully Lay out the four relevant factors in Bantam Books one word choice and tone Second the existence of regulatory Authority third whether the speech was Perceived as a threat and most Importantly perhaps whether the speech Refers to adverse consequences might the Court stick with the Bantam B tests and Where would that lead the government in This case yeah so that four-part test is A test that several of the lower courts Have used uh but the court in Bantam did Not frame it those way the second Circuit the ninth circuit and even the Fifth circuit Below in merthy used those Four factors and importantly they're not They're not exclusive factors I think

They were identifying them as among the Most important but certainly certainly Not the only one I I think many of us Who follow this issue and have been Following it for a long time are really Thirsty for for some for some type of Skeleton uh to hang this to hang this Analysis on and the fourth part of some Type of four-part test um seems to give Some shape to the totality of Circumstances Analysis but I do think it's and I and I Think that will be attractive to this Court especially the members of this Court who like tests who'd like Multi-art tests and I I do think we'll See something come out of the court that Is less amorphous than what we have now But I do think there are other factors That that are that are important and I'd Like to see the court look at those look At those factors as well what the things We talk about in our brief we filed um Our sort our power balances sometimes The court um you and so and this might Depend on who the governmental speaker Is is and even within the context of the Executive Brands there seems to be a Very a qualitative difference between Someone from the White House making very Strong requests and you know somebody From the CDC which has very very limited Regulatory Authority or someone from an From an agency like sisa which is

Inherently advisory um in its functions So um you know when you have some the The name plaintiff here is the Surgeon General whose job essentially is to be Sort of a public scold on on public Health and it would it would seem to be Odd to take out the public scold part of The job and it's it's uncertain what Would be left of of the surgeon General's job if they weren't allowed to Sort of lecture everybody on on on Public health advice I do think there Are two very interesting things Happening in this case one is this Doctrinal question that we as lawyers Are very interested in and I actually Don't know that there'll be a lot of Dispute among the court around this and Part of that is because Um because the totality of the Circumstances test is so flexible I do Think we'll get a cessing of the Justices around some type of framework Whether it's those four factors or Something based on those four factors uh In our brief we urge the court to really Look at two essential questions that Those four factors help to answer one is The government's intent does the Government have an intent um to replace Its editorial judgment uh with that of The platforms and the seconds being the Perception of the platform form would a Reasonable person perceive that they

Really had no choice uh to substitute The government's editorial decisions for Their own the second part which is much More interesting which the court might Not get to because they could just Remand is actually how do you apply that Test to the numerous very very different Interactions that took place in in this Case and that I don't see us getting Five votes on on most of those things Just because again what stating a Multiactor test is much far easier than Applying it so I think it would be Really interesting to see what how the Court treats the individual examples and I think if you read the amikas briefs There's a great range those who engage With the facts there's a really great Range of whether of which types of Interactions people think um were Permissible cross the line from I don't Even know if the lines up between per Persuasion and coercion as much so as Permissible persuasion and impermissible Persuasion a helpful distinction indeed Well uh let's now turn to the final set Of cases uh they're called OK Conor Ratliffe versus Garnier and linky versus Freed the question is to what degree can Government officials block or restrict People from commenting on their social Media accounts and there are different Facts in these cases in linky an Official was using a private account

Created before he became an official in The other case of Conor Ratliff we have The opposite with the accounts were Designated as official government Accounts and the question is to what Degree can uh blocking or editing be Allowed Alex ABDO how do you think we Should think about these Cases well the the most important I Think legal question presented by the Cases is um when public official use of Social media uh is subject to the First Amendment which um is actually a state Action question unlike um you know Unlike the main question at issue in the Mery case is the question of when uh Public officials who are interacting With their constituents or furthering Their official duties using their social Media accounts you know when or whether And when um uh their use of those Accounts uh is subject to First Amendment limitations with the main one That we would care about the prohibition On um on Viewpoint discrimination um Because if the first amendment is held To apply to public officials who are Using their accounts in this way then They can't silence their critics uh much In the same way that public officials Can't silence their critics in town hall Meetings or other traditional public Forums what the plaintiffs in these Cases are arguing for it's very similar

To what um the KN Institute was arguing When it filed a suit against former President Trump when he used his Twitter Account very much as an extension of his Office and began blocking critics um Which is uh an unorder forbidding public Officials from silencing their critics In these forums um you know on the basis Of viewpoint unfortunately one of the Two circuits the sixth circuit in the Decision Below um in one of the decisions below Adopted a very formalistic understanding Of when public official use of social Media Is subject to the First Amendment and um It essentially held that it you know Public officials in their use of social Media are subject to the First Amendment Only when they use um uh State resources Or have an explicitly set out um uh Duty In regulation or in law uh requiring Them to use social media in furtherance Of their official Responsibilities and those are very Narrow circumstances most public Officials um who engage with the public Using social media are not doing so Because there is a law that requires Them to do so um some use State Resources former president Trump relied On um uh on you know official federal Employees to help him administer his Account but many public officials

Especially at the local level don't have The resources to rely on in their Offices to help administer their Accounts even if and even when those Accounts become an important tool of Governments or an important um uh Avenue Through which they disseminate important Official information to the public and So what I would like to see the court do Is adopt um the standard test the court Uses to distinguish between State action And private action in other context Which is to look to see uh you know Whether the official uh is is um you Know using their account as a tool of Governance you know whether and whether Their use of it is fairly attributable To the state and again as with the Murthy case the legal lines here are a Little bit mysterious you know um Context dependent um and I you know Understand the Instinct that some may Have in the face of an uncertain Totality test to gravitate toward um you Know uh a test that is maybe easier to Administer but you know loses some of The Nuance I understand that but I think That'd be a mistake in this context Because it would be a road map for Public officials um to create Echo Chambers in their online engagement with Their constituencies which is now you Know one of the most important ways that Public officials engage with the

Public that idea of an echo chamber is Powerful and thanks also for the Analysis of the of the six circuit Decision uh clay Cal How would you look at these two social Media Cases sure I mean I agree that the six Circuit test is really too limiting in Terms of citizen participation uh by Making it too hard to overcome that State action hurdle essentially that They have to be acting pursuing to their Official duties in some way uh to Trigger State action so uh given as Alex Said this is how people communicate Today often uh with their public Officials their representatives and Government Uh to hinder that by saying oh there's No State action because the test we've Created limits it so much that's going To be very problematic so yes while That's much the six circuit has a much More bright line are you acting pursuant To your official duties or apparent Duties uh when when you operate this Website even though it appears to be Private but are you doing it that way That's a very narrow test so yes the Court will probably adopt uh much more Of a totality of the circumstance ances Test with Multifactors uh multiple factors it It'll be more messy to apply uh probably

Much more subjective to apply uh if you Go back to the okon Ratcliffe test Things that they focused on uh were Things like the appearance of the Website uh do I have indicaa uh that I'm Using it I've got a picture of myself at A government event uh I've posted my uh Office location I communicate with my Constituents uh for the purpose about it In other words how do I use it am I Using it a lot to communicate to with my Constituents to convey information to Solicit feedback to interact with them Or am I using them much more in a Private capacity so one thing I usually Tell my students is there's nothing in These cases that says you can't just Have your own if you're government Official and I can have my own you know Social media account where I talk about Movie reviews right uh or my family uh And that's not going to trigger State Action uh the question is then once I Start using it for other purposes when When do we get there so uh again there's There's going to be a lot of gray area There so I agree the six circuit test is Too limiting giving given the realities Of how people communicate uh with their Representatives today many thanks for That well we now turn to the KN Institute's position and you filed a a Really comprehensive brief in the case David Green um in both okon Radcliffe

And linky where you argue that when an Official chooses to mix government and Non-governmental conduct and an Individual account they must accept the First Amendment obligations that go with Doing so and the court should apply well Established bans on Viewpoint Discrimination tell us about that Position and then tell us about the case That's been mentioned a few times which Uh involved the Knight First Amendment Institute versus Trump which was a Lawsuit filed at the end of the Trump Administration involving whether or not President Trump could ban folks on Twitter and the court ended up sending That case back to the second circuit With instructions to dismiss it as moot Yeah so I'm happy to I'm happy to talk About uh talk about our brief and I can I can which we filed which we at eff fil Jointly uh with with Knight and I am and Let me just say I actually don't think That the gray area is as gray and murky With this test as it is with the jaw Bone tests and and I think because when You look at the it's a tremendously Common practice for governmental Officials to use social media to do Their jobs uh to make official Announcements to have um to have the Type of discussions with constituents That they formerly would have had at at Public Gatherings this is really common

Um the only thing that's unusual about It is that occasionally some well two Things occasionally some of them also Like post photos of their children which Again is also not completely uh unusual Uh in in other contexts and where what We really see a lot of which I think is A really dangerous manipulation the System are uh officials who've had Who've had campaign accounts which they Consider to be private and then once They get elected to office they use that Campaign account to then essentially Could do their jobs uh to talk about Their accomplishments to talk to discuss The issues to to make announcements and To communicate with their constituents Uh and then they claim when they start To silence their critics uh on those Sites that this is still part of Campaigning I think that's a very Dangerous practice and I think that's Something that the court can directly Say um is that they're that they're not They're not acting as candidates then uh But they're acting as official And that's really one of the most common Scenarios we seen here I think the type Of the type of scenario that's that's Raised in the linky versus free case um Where someone really has a seem to have A private account that very occasionally And rarely uses it for governmental Purpose is actually the outlier in what

We see in these cases so um I'm hopeful That this actually presents a case where The court could actually give a fair Amount of clarity I I think the nine Circuits test actually really reflects And looks at the factors that are really Obvious and common at how government Officials use so use the interactive Spaces of their social media accounts And I think the six circuit says just Doesn't reflect at all it's far too Narrow it captures a tiny slice of how Of how government officials use it um The the uh Alex's case that they brought At night against Trump um had both of These issues right you had the issue of Whether Trump's previously existing Account real Donald Trump um could be You was being used for the purposes of The presidency as a and and there there Was an actually an official account the At podus account um that he rarely used But it was very clear from the facts of That case that the president was Conducting the business of the Presidency over primarily Twitter he was Firing people over over Twitter that was The only place it was you know over at The real title Trum account that was the Only place for example that that that Was that was being publicly done so um So in those case there were some really Obvious examples there Knight did a Really uh excellent job of of actually

Having you know Discovery in this case Um and finding out some of the details About how those decisions were made and Things like that that really support That idea and then the second part of The case which it would have been really Uh which the lower courts I thought Dealt with really well was once you once There is a first member right then what Does it mean what does that limit and Certainly at a minimum it limits Viewpoint discrimination um whether it Also limits content-based decisions Would really I think depend then on a Very difficult factual scenario about uh Whether the Forum that created is a you Know is a non-public forum is is a some Type of limited public forum or some Type of public form like a design Designated public form that's much more Uh and I think that is the much more uh Fuzzy area I think it's unlikely the Court could take that up in these cases I think it's far more likely that the Court will pick a test and then remand Uh both of these cases uh for the courts To apply apply those tests and I think Looking at these all these cases really Broadly what you're really seeing is the Supreme Court really needing to Understand content moderation really Need to understand what this process is Of how things end up being seen by the Public on social media uh these cases

Really deal with user controls how how a User can control their own account and The other cases really deal with how the Platforms make those decisions and the What's critical is the courts really Going to need to understand this and I Hope they really understand this in a Way they don't what we frequently see in Technology cases the court these very Sort of piy laugh lines of the oral Arguments like you know we're the we're Not the best nine people to make these Decisions um and I really hope we don't Get I hope we're done with that and we Really get the court really seriously Engaging with something that's actually Understandable and which they've had a Ton of help with in amikas briefs in These Cases many than for that for that really Helpful distinction between user control And how platforms make the decisions Well it's time for some closing thoughts In this great discussion and Alex ABDO In mooting out the uh Trump Twitter case Which which Knight brought Justice Thomas said that applying all doctrines To new digital platforms is rarely Straightforward and the justices will Soon have no choice but to address how Our legal doctrines apply to highly Concentrated privately own information Infrastructures such as digital Platforms one important Insight I've

Gotten from this great discussion is That it's impossible to apply a single Simple rule to all of these cases such As no Viewpoint discrimination in any Circumstances but each of you has Distinguished among different uses of The platforms by the platforms Themselves and by users in a Contex Specific way as you try to identify some Broad principles for the justice is to Apply in all three categories of cases What would you Say it's a really great question maybe I'll even step back and and answer the Question at an even higher level and This goes um you know maybe you can put This in the in the bucket of helping David answer the impossible question you Gave him earlier which is um trying to Defend Texas's and Florida's laws I I Understand what I think motivated Justice Thomas and writing that Concurrence and what motivated some of The other justices um in implying in the Leadup to the Gonzalez case that they Were interested in revising section you Know the judicial interpretation of Section 230 and what I think you know Motivates that concern is the fact that A relatively small number of companies Seem to exercise a significant amount of Control over what can be said online Today I don't think that's unique to This moment I think media organizations

Have also played historically an outsize Role in deciding what views get aired Publicly and spread among the public but This is the latest version of of uh you Know of that example where relatively Small number of companies seem to you Know have outsized power over public Discourse um and I think that is maybe The most charitable explanation for why Regulators are targeting the social Media platforms for essentially common Carriage laws as David was saying Earlier you know must carry laws I think Um that effort is misguided for the Reasons David was saying earlier these Platforms are not in fact the public Square they are privately curated spaces For people to join in communities that The platforms have a heavy hand in Organizing um and that people go to in Large part because of the benefit they See in the close curatorial control that The platforms exercise over you know Those diff very different speech Environments you know most people don't Want to go on Facebook and see um hate And toxicity and um uh uh pornography They go on there because Facebook spends An enormous amount of money um Curating uh you know uh communities and Conversations that are different that Are different than those um and you know I'm I'm a a Critic of the platform I Don't think they're serving you know uh

Democracy especially well at the moment But I don't think the answer to the Problem of concentration of power over Public discourse is to concentrate that Power in the hands of the government um I think if you're genuinely con Concerned about that concentration of Power then the solution is to attack the Concentration um to uh you know look at Potential legislative solutions that Make it easier for competitors to come Into the market that more closely align The incentives of the platforms with the Interests of their users um you know you Know laws directed at competition or Interoperability or privacy or Transparency I think are a better you Know much better model to pursue than Laws that are directed at um content Moderation directly and so it may be That when the court took the Gonzalez Case and had that kind of buyers or Morris that David was gesturing at I I Really hope that's not what motivated The court into taking um the net Choice Cases and I don't actually don't think That's what motivated the court into Taking those cases I don't think it had A choice it had two very conflicting Circuit decisions you know one the fifth Circuit that was you know in outright Conflict with the very long line of Supreme Court cases I don't think it Really had a choice but to take those

Cases um and hopefully um but hopefully I'm you know predicting correctly that The court will invalidate the mus carry Provisions as I as I think it should so Um if I have a you know broad takeaway It's that um I agree with David that Content moderation is not where Generally where legislator should be Focusing their efforts I much prefer That they focus on some of the Structural problems with competition in The social media Market thank you so Much for that great and very brandan uh Insight of about if the central problem Is concentrated power in the hands of The platforms don't solve it by Concentrating power in the hands of the Government uh clay Calver uh final Thoughts and are there any overarching Principles you'd urge the justices to Consider that unite all of these cases Well let me just add something to which Alex said about the split of authority Between the fifth circuit uh and the 11th circuit uh on the net Choice cases The fifth circuit which upheld it's Important to note uh Texas's laws and Said they were perfectly fine uh that Decision was bizarre from any Traditional First Amendment analysis uh It really reeks of a text history and Tradition approach which is designed to Appeal uh Jeffrey as you started out to Justice Thomas uh increasingly the

Conservative justices uh in the Second Amendment cases at least right are all About what does the tech say what's the History and what's the tradition of this And the fifth circuits the majority Opinion really went down a text history Tradition approach That creates an opening if Thomas wants To go there and maybe pull AO in uh to Take a very different analysis than we Typically see uh in First Amendment Cases which is you know is it speech Does the speech fall into an unprotected Category if it doesn't then it's Protected and then if it's content-based Law you apply strict scrutiny if it's uh In if it's a Content neutral youly Intermediate scrutiny the fifth circuits Analysis really didn't do that and I Think it really help to Tee It Up uh if The conservative justices want to go There uh the bottom line I would say to To go to have big picture principles Here is in it something somebody else Mentioned earlier the Reno versus ACLU Case maybe David mentioned that uh from 1996 uh where the Supreme Court or 97 The United States Supreme Court said That we're going to treat uh the Internet speakers like speakers in the Print medium and not narrow their first Amendment rights like we have done with Broadcasting and cable uh and so I think That's another issue here are they going

To revisit that major principle I don't Think they'll reverse that some justices Again Thomas might want to go there I Don't think that's going to happen uh The Whole Net Choice cases are all about The ability of private businesses to Create their own speech-based Communities that they want to enforce Themselves and now the government is Telling them mandating you must host Speech that you don't want to so they're Interfering with that so one of the key Things is going to be there's a case Called Miami heral versus tornello from 1974 which basically said the Supreme Court said you cannot print newspapers Cannot be compelled to host replies from Candidates for public office that are Attacked and Florida had a statute Saying that well okay if you're a Candidate for public office and you're Attacked by the Miami Herold as torello Was he gets free space and the Supreme Court struck that down and said no that Violates the rights of editorial control And discretion that a print newspaper Has Uh and that principle comes up in this Case and it's not a clear Square analogy They don't they're they're different Right print newspapers are different Than social media platforms but that's Going to be something that the Court's Going to have to wrestle with here so

I'll stop there thank you very much uh David Green last word in this wonderful Discussion is to you uh we're we're Almost at time so if you could keep it Tight and Inspire our listeners by Bringing together the big themes that You think should uh guide the court as They consider these important cases yeah I think it's useful just look at look at These these five cases together to look At them as examining different facets of Government's in interaction with social Media so the net Choice cases really are Government is regulator does government Have any type of regulatory role over The content moderation process I I think I think we all think the answer is no or Very very limited role um on the other End are the um the uh government social Media counsil now you have government as A user of social media what is the Government's role does it does it have Does it um how do we treat government When it's a user of social media does it Still have the limitations we typically Place on government um when it when it Participates in other forums and and so To what extent does the public forum Doctrine now apply to those and then in The middle really interestingly is the Jaw boning cases both Murthy the online Case as well as the other jawboning case The court has taken NRA versus fell Which doesn't arise um in the internet

Context but again what you have there is Um to what extent what is the Government's role where it's sort of Standing in the place of other users and And I think the important thing with the Merthy case is that the platforms are Get a ton of feedback not just from the Government but from but from their own Users and from some trusted partners and And Civil Society um and can the Government play on equal grounds in that Role or is is the or is the government Again limited um by you have to function A limited function so I what I think is Interesting about all these cases Al Together is really bringing them in Totality is you really have to a full Spectrum of what is the government's Proper role um as it participates um With with social media content Moderation beautifully put and you bring Us right in on time Alex ABDO Klay Calbert and David Green thank you so Much for an Illuminating and uh Uplifting discussion of the Court's role In discussing the First Amendment and Social media Alex clay David thank you So much for joining thank you friends For taking an hour in the middle of your Day to learn about the Constitution and Look forward to seeing you again soon Thank you Jeff Take Care thank you All this program was streamed live on January 16th 2024 today's episode was

Produced by Lana R TAA tabber and Bill Pollock who was engineered by Kevin Kevin Kilburn and Bill Pollock research Was provided by Samson mesar Cooper Smith and Yara de We the People friends I'm so excited that on February 13th my New book is coming out it's called The Pursuit of Happiness how classical Writers on virtue inspired the lives of The founders and defined America I can't Wait to share it with you and if you Read the book and like it email me and I'll send a signed book plate that's J Rosen constitutioncenter.org Please recommend the show to friends Colleagues or anyone anywhere who's Eager for a weekly dose of Constitutional conversation and debate And if you like this episode please Subscribe to live at the national Constitution Center on your favorite Podcast App always remember the national Constitution Center as a private Nonprofit We rely on the generosity Passion and engagement of people from Across the country who are inspired by Our nonpartisan mission of Constitutional education and debate Support the mission or give a donation Of any amount at constitutioncenter.org Membership or constitutioncenter.org Donate on behalf of the national Constitution Center I'm Jeffrey


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