WEBVTT - Trump Appointee Refuses to Stay Controversial Order 0:00:03.200 --> 0:00:08.000 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:09.840 --> 0:00:13.840 Louisiana federal judge has refused to put a temporary hold 0:00:13.880 --> 0:00:18.120 on his controversial order banning federal agencies and officials from 0:00:18.160 --> 0:00:23.080 communicating with social media companies. Biden administration attorneys had asked 0:00:23.120 --> 0:00:27.440 Judge Terry Dowdy, a Trump appointee, to stay his nationwide 0:00:27.480 --> 0:00:30.840 injunction while they pursue an appeal to the Fifth Circuit. 0:00:31.160 --> 0:00:33.920 After a year long delay, the judge had issued the 0:00:34.040 --> 0:00:37.760 order on July fourth, giving a victory to Republican attorneys 0:00:37.800 --> 0:00:41.760 general in Missouri and Louisiana and concluding that the government 0:00:42.040 --> 0:00:45.960 likely violated the First Amendment in its efforts to persuade 0:00:46.040 --> 0:00:49.080 tech companies to take steps to limit the spread of 0:00:49.200 --> 0:00:53.600 misinformation and fake accounts, especially during the pandemic. Joining me 0:00:53.680 --> 0:00:57.760 is Jess Meyer's Legal Advocacy Council at the Chamber of Progress. 0:00:58.120 --> 0:01:00.880 Just I want to start with the July five fourth opinion, 0:01:00.920 --> 0:01:03.560 which is one hundred and fifty five pages. Can you 0:01:03.600 --> 0:01:05.240 summarize his findings for us? 0:01:05.600 --> 0:01:06.520 Absolutely so. 0:01:07.080 --> 0:01:10.600 The judge found that the plaintiffs were able to meet 0:01:10.600 --> 0:01:13.720 their burden for the preliminary injunction when it comes to 0:01:14.200 --> 0:01:18.000 state action. All this means is that when we later 0:01:18.120 --> 0:01:21.840 consider a Merits decision or Merits opinion, the plaintiffs have 0:01:21.920 --> 0:01:24.880 done enough to show that this conduct is enough to 0:01:24.920 --> 0:01:28.560 be enjoined until that merit's decision is heard. The order 0:01:28.640 --> 0:01:32.840 itself put out several requirements having to do with government 0:01:32.920 --> 0:01:34.479 interaction with social media. 0:01:34.720 --> 0:01:36.080 For the most part, the. 0:01:36.000 --> 0:01:41.080 Biden administration defendants are prohibited from communicating with social media 0:01:41.120 --> 0:01:44.440 companies about content unless it fits into some of the 0:01:44.480 --> 0:01:48.280 exceptions provided, which were for things such as national security 0:01:48.480 --> 0:01:52.880 and criminal activity. So that order is currently in place. 0:01:53.120 --> 0:01:56.640 Can you tell me why the judge decided why he 0:01:56.880 --> 0:02:01.400 thinks that the plaintiffs here will win on the merits. 0:02:02.280 --> 0:02:05.160 Importantly, what the court was looking for in this case 0:02:05.400 --> 0:02:09.040 is significant encouragement and coercion from the government. That's the 0:02:09.080 --> 0:02:12.239 analysis that these judges look for when they are assessing 0:02:12.360 --> 0:02:13.560 improper state action. 0:02:14.080 --> 0:02:14.919 So the court was. 0:02:14.880 --> 0:02:17.760 Considering whether any of the government's request to the platforms 0:02:17.760 --> 0:02:21.280 could be reasonably perceived as threats, for example, to engage 0:02:21.320 --> 0:02:25.239 in censorship, and from the evidence that was presented and 0:02:25.600 --> 0:02:29.800 thoroughly discussed throughout the opening of the opinion, the court 0:02:29.840 --> 0:02:34.400 seemed to agree that there is evidence of significant coercion 0:02:34.560 --> 0:02:38.320 to engage in censorship from the governments to the tech companies. 0:02:38.480 --> 0:02:41.480 The court also assessed the extent of the government's overall 0:02:41.520 --> 0:02:45.200 involvement in the platform's content moderation decisions. And again it 0:02:45.360 --> 0:02:47.880 presents a question as to you know, what is the 0:02:47.919 --> 0:02:52.280 extent that the government is just rotely requesting or reporting 0:02:52.360 --> 0:02:56.000 that content should be taken down versus strong arming the 0:02:56.040 --> 0:02:58.200 companies for example, And did. 0:02:58.040 --> 0:03:02.040 The judge find that the bidenminstration was strong arming the companies? 0:03:02.560 --> 0:03:05.480 The judge found that there was enough evidence presented to 0:03:05.680 --> 0:03:09.360 potentially meet that burden required under state action. So in 0:03:09.440 --> 0:03:13.600 order to then actually determine that significant coercion and encouragement 0:03:13.680 --> 0:03:16.680 took place on the part of the Biden administration, there 0:03:16.680 --> 0:03:19.560 would have to be a merits discussion. The Court now, 0:03:19.600 --> 0:03:23.120 in granting this preliminary injunction, has found that there is 0:03:23.240 --> 0:03:27.919 enough evidence to reasonably decide to enjoin the actions between 0:03:27.919 --> 0:03:30.840 the government and social media companies as we wait for 0:03:30.880 --> 0:03:31.840 a Merit's decision. 0:03:32.400 --> 0:03:36.680 So Judge Dowdy wrote, the present case arguably involves the 0:03:36.680 --> 0:03:40.640 most massive attack against free speech in United States history. 0:03:41.440 --> 0:03:44.880 How does he justify that or back that up. 0:03:45.720 --> 0:03:50.280 So again it's coming from the extensive evidence that was 0:03:50.360 --> 0:03:53.440 discussed throughout the opinion. The judge is looking at things like, 0:03:53.760 --> 0:03:56.080 you know, emails that were sent from Biden. 0:03:55.840 --> 0:03:58.240 Administration officials to the social media. 0:03:58.000 --> 0:04:04.160 Companies strongly suggesting wrongly wording the government's request to remove content. Additionally, 0:04:04.240 --> 0:04:09.000 the court cited to the attempts by Biden administration or 0:04:09.040 --> 0:04:13.760 the suggestions by the Biden administration to impose regulations such 0:04:13.800 --> 0:04:17.720 as amending or repealing Section two thirty, which of course says, 0:04:17.839 --> 0:04:21.400 as you know, is the immunity that these services rely 0:04:21.600 --> 0:04:24.200 on in order to do content moderation in the first place. 0:04:24.360 --> 0:04:28.080 So these types of suggestions and what could be perceived 0:04:28.120 --> 0:04:30.840 as threats is what the court was really honing in 0:04:30.880 --> 0:04:32.880 on when it was making a decision that it thinks 0:04:32.880 --> 0:04:36.679 there is enough evidence there to suggest that state action occurred. 0:04:36.920 --> 0:04:39.880 So what about the free speech rights of the federal 0:04:39.920 --> 0:04:44.160 officials who are allegedly making these comments to the social 0:04:44.160 --> 0:04:45.000 media companies. 0:04:45.680 --> 0:04:48.920 There's a question about the beech rights of the government, 0:04:49.080 --> 0:04:52.560 which is arguably tricky when it comes to drawing a 0:04:52.600 --> 0:04:57.160 line between when the government can communicate versus when that communication. 0:04:56.680 --> 0:04:58.200 Arises to the level of. 0:04:58.440 --> 0:05:01.320 Significant colleresion impermissible state action. 0:05:01.680 --> 0:05:04.280 So that's one consideration. But there's also another. 0:05:04.040 --> 0:05:07.760 Important consideration here, and that is the First Amendment rights 0:05:07.760 --> 0:05:10.279 of the companies as well, not just the First Amendment 0:05:10.360 --> 0:05:13.360 rights of the companies to make decisions as to what 0:05:13.440 --> 0:05:15.719 kind of content they choose to carry or not carry 0:05:15.720 --> 0:05:19.120 on their services, but potentially also a right to petition 0:05:19.200 --> 0:05:22.640 the government as well. These companies have a right to 0:05:22.720 --> 0:05:27.160 communicate with their government representatives when it comes to trying 0:05:27.200 --> 0:05:31.440 to become informed to make decisions about some of this edgier, 0:05:31.480 --> 0:05:33.720 trickier content that they're making decisions on. 0:05:33.960 --> 0:05:35.159 So it goes both ways. 0:05:35.480 --> 0:05:38.880 The line is less clear for government officials, but it's 0:05:38.920 --> 0:05:41.800 pretty glaring for social media companies when it comes to 0:05:41.880 --> 0:05:45.719 their own engagement, their own voluntary engagement with government. 0:05:46.120 --> 0:05:48.920 Was it just the Justice Department that was defending this 0:05:49.200 --> 0:05:51.840 and could you just summarize their argument the. 0:05:51.760 --> 0:05:55.560 Biden administration, the defendants in this case were arguing that 0:05:55.960 --> 0:05:59.160 their conduct, of course, does not arise to significant encouragement 0:05:59.240 --> 0:06:01.640 or coercion. To the extent that they're making that argument, 0:06:01.680 --> 0:06:04.440 they are suggesting that at all times they have requested 0:06:04.560 --> 0:06:09.080 or reported communications reported content to the social media platforms, 0:06:09.240 --> 0:06:12.280 but importantly, the decision to remove content has always been 0:06:12.320 --> 0:06:15.159 left up to the social media platforms. So the government 0:06:15.200 --> 0:06:19.000 is essentially arguing that simply submitting request to the social 0:06:19.080 --> 0:06:22.520 media companies about content is not enough to arise the 0:06:22.600 --> 0:06:25.360 level of coercion that we have seen the Supreme Court 0:06:25.400 --> 0:06:28.120 and other courts before determined for state action. 0:06:28.839 --> 0:06:31.800 So is it unusual it took this judge a year 0:06:32.080 --> 0:06:32.960 to rule on this. 0:06:33.560 --> 0:06:35.760 I don't think so. I wouldn't be able to speak 0:06:35.760 --> 0:06:38.760 to the decision making that took place. For this to 0:06:39.120 --> 0:06:41.600 take a year, I think state action it speaks to 0:06:41.680 --> 0:06:44.880 the complications that is the state action doctrine. 0:06:45.279 --> 0:06:46.240 Doctrine itself is. 0:06:46.200 --> 0:06:51.800 Heavily convoluted and heavily contradictory and conflicting with the cases 0:06:51.839 --> 0:06:53.000 that we've seen in the past. 0:06:53.440 --> 0:06:57.680 The bind administration asked the judge to put a temporary 0:06:57.760 --> 0:07:01.799 hold on the order while it appeals to the Fifth Circuit. 0:07:02.279 --> 0:07:06.719 The administration argued that the terms of the injunction were 0:07:06.839 --> 0:07:10.360 overbroad and ambiguous, saying it would leave it up to 0:07:10.400 --> 0:07:13.960 every individual agency official to have to figure out if 0:07:14.040 --> 0:07:18.720 certain online speech was or wasn't constitutionally protected. Do you 0:07:18.760 --> 0:07:21.920 think that was a good argument after reviewing the judges order. 0:07:22.240 --> 0:07:25.440 Yes, absolutely, As you just said, what's concerning in this 0:07:25.560 --> 0:07:29.280 case is that the judge's decision to restrict contact between 0:07:29.320 --> 0:07:33.880 the administration and social media platforms appears to be overly broad, arbitrary, 0:07:34.080 --> 0:07:38.240 and contradictory. You know, the Trump appointed judge here directed 0:07:38.280 --> 0:07:42.280 federal officials to stop notifying social media companies and outside 0:07:42.320 --> 0:07:46.040 re researchers of problematic content. Of course, while that order 0:07:46.160 --> 0:07:49.920 made some exceptions, as we've discussed, for crime, national security, 0:07:50.000 --> 0:07:53.520 and attempts to suppress voter rights, a lot of these 0:07:53.560 --> 0:07:56.560 exemptions are in fact contradictory. So, for example, the exemption 0:07:56.640 --> 0:08:01.400 allowing the government to exercise permissible public government speech conflicts 0:08:01.400 --> 0:08:04.679 with the judge's conclusion that statements by the Surgeon General 0:08:04.800 --> 0:08:07.640 and the White House Press Secretary violated the First Amendment. 0:08:08.040 --> 0:08:09.640 As you know, there's. 0:08:09.280 --> 0:08:12.080 All sorts of content that is on the borders when 0:08:12.120 --> 0:08:15.680 it comes to criminal content, national security, etc. And so 0:08:15.960 --> 0:08:19.360 the order is essentially positioned companies either speak with the 0:08:19.400 --> 0:08:20.760 government or don't speak with the government. 0:08:20.800 --> 0:08:22.160 But these exemptions. 0:08:21.640 --> 0:08:24.040 Are not going to be enough for there to be 0:08:24.440 --> 0:08:26.880 a clear decision as to when it is appropriate for 0:08:26.920 --> 0:08:29.280 government and social media companies to interact. 0:08:29.680 --> 0:08:32.800 The Biden administration had asked the judge to stay his 0:08:32.960 --> 0:08:37.160 nationwide injunction while they pursue an appeal to the Fifth Circuit. 0:08:37.400 --> 0:08:40.480 Judge Daddy refused to do that. I mean, it's not 0:08:40.520 --> 0:08:44.040 only that he denied the request for a stay, but 0:08:44.120 --> 0:08:47.800 he even denied the alternative requests for a seven day 0:08:47.920 --> 0:08:50.880 pause while it asked the Appeals Court to step in. 0:08:51.160 --> 0:08:52.400 That just seems mean to me. 0:08:54.120 --> 0:08:57.360 I read his order as vindictive, And again it doesn't 0:08:57.400 --> 0:08:59.839 surprise me only because, well, the same judge who he 0:09:00.320 --> 0:09:03.640 down the injunction order, who is now deciding whether to 0:09:03.679 --> 0:09:08.720 stay his injunction. And from the original memo supporting the 0:09:09.760 --> 0:09:13.720 the injunction, you could pretty much tell that this judge 0:09:13.760 --> 0:09:18.200 has already determined without more that this is impermissible state 0:09:18.240 --> 0:09:21.880 action by the Biden administration. And it feels more heavily 0:09:21.920 --> 0:09:25.800 political than legal here, so I am not surprised by 0:09:26.040 --> 0:09:28.160 the judge's rejection. 0:09:27.800 --> 0:09:28.320 Of this day. 0:09:28.600 --> 0:09:32.840 Here did Judge Dowdy add any new reasons for keeping 0:09:32.880 --> 0:09:35.640 the injunction in place, or did he basically say it's 0:09:35.679 --> 0:09:38.280 what I said before it's not as and it's not 0:09:38.400 --> 0:09:40.079 as broad as it appears. 0:09:40.520 --> 0:09:41.160 It's the latter. 0:09:41.360 --> 0:09:45.800 So Dody kind of stirked hercularly addresses the DOJ's concerns 0:09:45.880 --> 0:09:48.319 regarding the overbreadth of the order, saying, you know, the 0:09:48.440 --> 0:09:51.079 order prohibits something that defendants have no legal right to do, 0:09:51.160 --> 0:09:54.840 which is contacting social media companies for the purposes of urging, encouraging, 0:09:54.880 --> 0:09:58.800 or pressuring companies to engage in content moderation. But it 0:09:58.840 --> 0:10:04.160 doesn't address DOJ's arguments that all of the examples provided 0:10:04.880 --> 0:10:10.880 in the complaint do not arise to urging encouraging coercion 0:10:11.280 --> 0:10:14.640 significant encouragement that the court is supposed to assess here. 0:10:15.040 --> 0:10:18.040 So it's exactly that the judge did not issue any 0:10:18.120 --> 0:10:23.240 new reasoning in rejecting their stay application and instead just 0:10:24.080 --> 0:10:26.920 kind of used circular logic to explain why the order 0:10:26.960 --> 0:10:27.800 should stay. 0:10:28.320 --> 0:10:32.120 And within hours the DOJ filed an appeal with the 0:10:32.160 --> 0:10:35.520 Fifth Circuit. Tell us a little bit about what the 0:10:35.559 --> 0:10:36.760 DOJ argued. 0:10:37.240 --> 0:10:42.920 So the DJ's request for this limited stay highlighted several concerns, 0:10:42.960 --> 0:10:46.600 including the District Court's interference with the executive branches powers 0:10:46.760 --> 0:10:50.200 and duties to communicate with the American public, the plaintiff 0:10:50.280 --> 0:10:53.720 lack of standing as we've discussed before the district courts 0:10:53.800 --> 0:10:58.439 in precise state action analysis regarding coercion and significant encouragement, 0:10:58.840 --> 0:11:00.679 and the overbroad in size. 0:11:00.480 --> 0:11:04.400 And imbalanced injunction order as well. The DJ also. 0:11:04.240 --> 0:11:07.200 Noted that they would seek an emergency application for stay 0:11:07.280 --> 0:11:10.679 from the Supreme Court should the Fifth Circuit reject this request. 0:11:11.160 --> 0:11:15.200 The DOJ said that this order puts the judiciary in 0:11:15.280 --> 0:11:21.000 the untenable position of superintending the executive branches communications. I mean, 0:11:21.240 --> 0:11:24.840 just how would this injunction even be enforced? 0:11:25.559 --> 0:11:28.840 That's exactly it. The executive branch has a duty to 0:11:28.880 --> 0:11:33.360 communicate broadly with the American public about how they can mitigate. 0:11:33.000 --> 0:11:36.160 Threats to the nation, as the DJ discussed. 0:11:35.679 --> 0:11:39.680 And government officials are also permitted to express views about 0:11:39.720 --> 0:11:43.520 the world, including whether certain communications, such as from social 0:11:43.520 --> 0:11:46.760 media companies or news publishers, are false and harmful. 0:11:47.280 --> 0:11:48.800 So, given that. 0:11:48.679 --> 0:11:52.840 Sort of latitude of the executive branch's duties to advocate 0:11:52.880 --> 0:11:55.640 for indefend zone policies, there's a reason why we've seen 0:11:55.640 --> 0:11:58.199 the courts, including the Supreme Court, set such a high 0:11:58.240 --> 0:12:02.839 threshold for when advocacy be comes coercion or significant encouragement, 0:12:03.120 --> 0:12:06.920 and here the injunction order impermissively interferes with that duty. 0:12:07.280 --> 0:12:10.480 So in order to enforce it, there would again have 0:12:10.600 --> 0:12:13.640 to be a threshold question as to whether the communications 0:12:13.679 --> 0:12:17.560 prohibited by the order actually rise to this level of 0:12:17.559 --> 0:12:21.040 state action, in order to determine whether the communications meet 0:12:21.080 --> 0:12:23.800 some of the exemptions in the doj order. 0:12:24.000 --> 0:12:26.240 But again, there's already. 0:12:25.880 --> 0:12:28.960 An incredibly high standard for these communications, and this order 0:12:29.000 --> 0:12:30.960 is conflicting with that standard. 0:12:31.559 --> 0:12:34.160 I think it seems pretty likely that the Fifth Circuit 0:12:34.360 --> 0:12:39.319 is going to grant the stay for several reasons, but 0:12:39.400 --> 0:12:42.360 also because it may be sort of chastened. In the 0:12:42.440 --> 0:12:45.360 last term, the Supreme Court reverse seven out of nine 0:12:45.480 --> 0:12:48.160 rulings from the Fifth Circuit, so I'm not sure it 0:12:48.240 --> 0:12:50.520 wants another case to go up to the Supreme Court. 0:12:50.760 --> 0:12:54.640 I would actually be surprised if the Fifth Circuit did 0:12:54.679 --> 0:12:58.320 not overturn the injunction here, only because from what we've 0:12:58.360 --> 0:13:01.000 seen again with this Fifth Circuit it with regards to 0:13:01.080 --> 0:13:04.360 the First Amendment case in the net Choice in Ccia 0:13:04.520 --> 0:13:09.440 lawsuit regarding First Amendment rights of the services to carry 0:13:09.440 --> 0:13:12.840 specific content, I would actually suspect that the Fifth Circuit 0:13:12.880 --> 0:13:15.760 would uphold this injunction based on some of the similar 0:13:15.800 --> 0:13:19.920 reasoning that they chose to uphold the HB twenty. 0:13:20.160 --> 0:13:21.040 Law in Texas. 0:13:22.160 --> 0:13:28.240 Have courts been playing an oversized role in mediating fights 0:13:28.679 --> 0:13:32.520 over how the tech giants moderate what goes on their platforms? 0:13:32.559 --> 0:13:34.680 I mean, should this be the role of the courts? 0:13:35.120 --> 0:13:36.960 I mean, that's the interesting question. 0:13:37.080 --> 0:13:39.080 It kind of gets to the heart of this decision 0:13:39.160 --> 0:13:43.680 because in giving this order, the Court itself is making 0:13:43.679 --> 0:13:47.040 decisions about what types of speech are acceptable and what 0:13:47.120 --> 0:13:49.600 types of speech are not acceptable. Again, we're talking about 0:13:49.600 --> 0:13:53.000 with exemptions that the order presents, and so that begs 0:13:53.000 --> 0:13:57.120 the question, then, is the court also improperly weighing into 0:13:57.640 --> 0:14:01.080 editorial discretion when it makes those decision when it sides 0:14:01.120 --> 0:14:03.959 with the plaintiffs in this case? And if so, then 0:14:04.080 --> 0:14:08.720 is the government the courts are they informissively using state 0:14:08.800 --> 0:14:12.959 action to enable censorship on these social media platforms? 0:14:13.320 --> 0:14:15.760 And I would venture to say yes in this case certainly. 0:14:15.800 --> 0:14:19.200 So let's just talk about the Supreme Court for a moment. 0:14:19.320 --> 0:14:23.520 Because the Supreme Court delayed a review of Texas and 0:14:23.600 --> 0:14:28.280 Florida laws that would allow users to sue online platforms 0:14:28.360 --> 0:14:31.800 for alleged political censorship. Does it seem like the Court 0:14:31.880 --> 0:14:34.520 will take that up. I'm wondering what the delay is. 0:14:34.600 --> 0:14:37.640 It seems like a case that's destined to be at 0:14:37.640 --> 0:14:38.800 the Supreme Court. 0:14:39.000 --> 0:14:41.480 Yeah, I mean, reading the tea leaves here, I think 0:14:41.520 --> 0:14:44.280 that the Court pretty much has to take the Net 0:14:44.320 --> 0:14:47.640 Choice NCCIA cases up in Texas and Florida. You know, 0:14:47.720 --> 0:14:50.320 I think there was a lot on the docket, especially 0:14:50.360 --> 0:14:53.000 with the Gonzales case and the Tamina case and some 0:14:53.080 --> 0:14:55.640 of the other First Amendment cases we saw earlier this term, 0:14:55.960 --> 0:14:58.320 and so I think the push to have the Solicitor 0:14:58.400 --> 0:15:01.400 General way in for the Texas Florida cases was a 0:15:01.880 --> 0:15:04.960 maneuver to buy time. But this case is teed up 0:15:05.080 --> 0:15:07.560 between the different state. 0:15:07.480 --> 0:15:09.560 Regulations that we've seen come out with. 0:15:09.440 --> 0:15:13.040 Regards to forcing services to carry content. Now we have 0:15:13.120 --> 0:15:17.000 this bided injunction, it seems glaring that the Court will 0:15:17.040 --> 0:15:20.320 have to make a decision about regulations that attempt to 0:15:20.560 --> 0:15:23.800 force social media companies private entities to carry First Amendment 0:15:23.800 --> 0:15:24.600 protected speech. 0:15:25.120 --> 0:15:27.440 This is going to the Fifth Circuit, which is one 0:15:27.440 --> 0:15:31.600 of the most conservative circuits in the country, So who 0:15:31.640 --> 0:15:33.800 knows what they'll do, But would that be a case 0:15:33.800 --> 0:15:35.240 for the Supreme Court as well. 0:15:35.720 --> 0:15:38.160 I absolutely could see the DOJ pushing this to the 0:15:38.160 --> 0:15:41.360 Supreme Court because again, the order itself is so broad, 0:15:41.600 --> 0:15:45.520 and it is creating this hostile environment for both social 0:15:45.560 --> 0:15:48.520 media companies and government actors when it comes to their 0:15:48.600 --> 0:15:52.680 ability to collaborate and info gather. But it's also again 0:15:53.000 --> 0:15:56.000 it brings a lot of First Amendment concerns, as we've discussed, 0:15:56.040 --> 0:15:58.800 for the government actors themselves, but also for the companies. 0:15:59.160 --> 0:16:00.960 At the end of the day, if we reach a 0:16:00.960 --> 0:16:04.920 merits decision that says that the government does act improperly 0:16:05.040 --> 0:16:07.720 when it sends requests to take down content to social 0:16:07.720 --> 0:16:11.040 media companies, that content that the social media companies removed 0:16:11.560 --> 0:16:14.920 could very well be considered improper state action and then 0:16:14.960 --> 0:16:17.960 those companies would be forced to reinstate that content. So 0:16:18.000 --> 0:16:20.960 we also have some must carry issues that are very similar. 0:16:20.720 --> 0:16:23.200 To Texas Florida cases in this case as well. 0:16:23.680 --> 0:16:26.720 Also, is there a question about the state ags having 0:16:26.880 --> 0:16:29.840 standing to sue here? Why do they have standing here? 0:16:30.520 --> 0:16:31.760 This is a complicated question. 0:16:32.760 --> 0:16:36.840 So we're talking about the First Amendment rights of US 0:16:36.920 --> 0:16:42.120 citizens and in states like Missouri, for example, in Louisiana where. 0:16:41.960 --> 0:16:42.960 These cases arose. 0:16:43.360 --> 0:16:48.240 The Fourteenth Amendment is what provisions our constitutional First Amendment 0:16:48.280 --> 0:16:50.479 rights and other rights that are granted by the constitutions 0:16:50.680 --> 0:16:53.520 for the states as well. And so with regards to 0:16:53.560 --> 0:16:58.800 a question of state action and impermissively abridging the rights 0:16:58.840 --> 0:17:01.680 of the users who have had their content removed, whether 0:17:01.720 --> 0:17:04.200 that be in this case COVID nineteen content or other 0:17:04.280 --> 0:17:07.240 types of content. That is sort of the idea that 0:17:06.920 --> 0:17:09.840 you know that the AG is pursuing with regards to 0:17:09.920 --> 0:17:11.960 standing in this case, and the Court seem to agree 0:17:12.000 --> 0:17:12.640 on that as well. 0:17:13.080 --> 0:17:16.120 Can you talk at all about the case before the 0:17:16.160 --> 0:17:19.840 Supreme Court whether elected officials violate the First Amendment when 0:17:19.840 --> 0:17:22.600 they block people from seeing their social media accounts. 0:17:22.880 --> 0:17:25.720 Yeah, absolutely so in both of those cases, I believe 0:17:25.720 --> 0:17:28.360 that's the o'hanley case and the lin Key cases. 0:17:28.400 --> 0:17:29.600 In both of those cases they. 0:17:29.520 --> 0:17:35.480 Regard government actors removing blocking content and accounts of private 0:17:35.680 --> 0:17:39.280 US citizens, And it's very similar to this case again 0:17:39.480 --> 0:17:42.480 with regard to the government has taken an action in 0:17:42.520 --> 0:17:44.240 that case. And again it's really important to keep in 0:17:44.320 --> 0:17:46.960 mind here in both cases, in the Spring Court cases 0:17:46.960 --> 0:17:49.560 and in this injunction order, we're not talking about the 0:17:49.600 --> 0:17:52.280 conduct of the social media companies. Though the conduct of 0:17:52.320 --> 0:17:54.280 social media companies can be implicated. 0:17:53.960 --> 0:17:54.919 In all three cases. 0:17:54.920 --> 0:18:00.800 Here we are talking specifically about government actions on speech. Courts, 0:18:00.920 --> 0:18:04.920 you know, in the past, have long recognized that state actors, 0:18:05.000 --> 0:18:08.560 whether they are operating a social media account under their 0:18:08.640 --> 0:18:12.520 official title or operating it as a personal account, are 0:18:12.560 --> 0:18:17.160 not able to block content, block accounts remove content that 0:18:17.240 --> 0:18:20.320 comes from private US citizens, as this would be a 0:18:20.400 --> 0:18:22.640 violation of the US citizen's right to speech, but also 0:18:22.680 --> 0:18:24.879 the right to have access to and protest. 0:18:24.560 --> 0:18:27.200 The government as well. So similar questions are. 0:18:27.040 --> 0:18:29.840 In front of the Supreme Court in the state actor cases. 0:18:30.280 --> 0:18:31.760 What will be interesting is. 0:18:31.720 --> 0:18:35.600 To see if the Supreme Court agrees that government action 0:18:36.000 --> 0:18:38.440 here was impermissible when it comes to the government's own 0:18:38.440 --> 0:18:42.160 decisions to remove content or block some of these accounts, 0:18:42.400 --> 0:18:45.680 what that will again mean for the social media companies. 0:18:45.760 --> 0:18:49.480 I'm wondering, is this an area where Congress should be 0:18:49.840 --> 0:18:52.520 taking some role instead of leaving it to the courts. 0:18:53.119 --> 0:18:57.320 So I think the Constitution itself and existing policy that 0:18:57.359 --> 0:19:00.880 we have already accounts for this. Again, the First Amendment, 0:19:01.160 --> 0:19:06.040 it's clear in that it restrains government and state actors 0:19:06.119 --> 0:19:10.320 from abridging the right to speech of private US citizens. 0:19:10.680 --> 0:19:14.919 We have a lot of state action doctrine already that 0:19:15.520 --> 0:19:19.280 gets into the weeds of when broadcasters and publishers do 0:19:19.600 --> 0:19:24.480 act jointly or are encouraged by state actors to abridge 0:19:24.520 --> 0:19:27.479 those First Amendment rights. So it's not likely that we 0:19:27.520 --> 0:19:29.040 need Congress to intervene here. 0:19:29.440 --> 0:19:31.680 However, this does present. 0:19:31.480 --> 0:19:34.920 Sort of a nuanced situation for state action doctrine and 0:19:35.040 --> 0:19:36.399 for the First Amendment. 0:19:36.359 --> 0:19:38.560 That the courts should be able to resolve. 0:19:38.720 --> 0:19:42.000 In the o'hanley case, the Linky case, and even here 0:19:42.200 --> 0:19:44.560 in the recent injunction order, are there. 0:19:44.480 --> 0:19:47.000 Broader implications to Judge Dowdy's order. 0:19:47.320 --> 0:19:50.760 The order could open the door for plaintiffs to renew 0:19:50.800 --> 0:19:54.760 some of their state actor arguments against social media companies, 0:19:54.920 --> 0:19:57.200 plaintiffs being not just the ones in this case, but 0:19:57.240 --> 0:20:00.600 as we've seen in previous cases where you know, plate 0:20:00.720 --> 0:20:03.240 just try to work around section p thirty, you work 0:20:03.240 --> 0:20:04.119 around the First Amendment. 0:20:04.200 --> 0:20:05.560 By suggessing that content. 0:20:05.280 --> 0:20:09.440 Removal was that of state action, it really could open 0:20:09.520 --> 0:20:11.480 the door for them to renew some of those arguments 0:20:11.560 --> 0:20:14.280 down the road, you know, suggesting that content removals were 0:20:14.280 --> 0:20:17.720 based on informiscible coercion from the state, and should future 0:20:17.760 --> 0:20:21.960 courts determine content moderation was the result of informiscible state actions. 0:20:22.000 --> 0:20:24.960 Social media companies again maybe forced to reinstate accounts and 0:20:25.119 --> 0:20:28.520 content against their preferences, which could lead to the reinstatement 0:20:28.640 --> 0:20:33.439 of pernicious misinformation and disinformation, hate speech, and more so, 0:20:33.480 --> 0:20:36.240 the implications of this case are much broader than just 0:20:36.280 --> 0:20:39.639 can the government communicate with social media? It goes beyond that, 0:20:40.000 --> 0:20:42.040 and it really it comes down to the kinds of 0:20:42.040 --> 0:20:45.040 speech that private actors such as the social media companies 0:20:45.280 --> 0:20:46.320 will be forced to carry. 0:20:47.119 --> 0:20:49.320 Well. Now have to keep watch on what the Fifth 0:20:49.320 --> 0:20:52.000 Circuit does. Thanks so much for being on the show, Jess. 0:20:52.359 --> 0:20:56.400 That's Jess Myers's Legal Advocacy Council at the Chamber of Progress. 0:20:56.760 --> 0:20:59.080 And that's it for this edition of The Bloomberg Law Show. 0:20:59.359 --> 0:21:01.720 Remember you can always get the latest legal news on 0:21:01.800 --> 0:21:06.080 our Bloomberg Law podcasts. You can find them on Apple Podcasts, Spotify, 0:21:06.240 --> 0:21:11.280 and at www dot Bloomberg dot com, slash podcast Slash Law, 0:21:11.680 --> 0:21:14.280 And remember to tune into The Bloomberg Law Show every 0:21:14.320 --> 0:21:18.240 weeknight at ten pm Wall Street Time. I'm June Grosso 0:21:18.359 --> 0:21:19.960 and you're listening to Bloomberg