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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 1: At a judicial conference in August aired on CSPAN, Justice

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Speaker 1: Elena Kagan said that the Supreme Court, like every branch

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Speaker 1: of government, is subject to checks and balances.

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Speaker 2: It just can't be that the Court is the only

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Speaker 2: institution that somehow is not subject to any checks and

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Speaker 2: balances from anybody else. I mean, we're not imperial, and

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Speaker 2: we too are a part of a checking and balancing

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Speaker 2: system in various ways. So can Congress do various things

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Speaker 2: to regulate the Supreme Court? I think the answer is yes.

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Speaker 1: That may not seem like a particularly surprising opinion, but

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Speaker 1: it is diametrically opposed to what her colleague, Justice Samuel

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Speaker 1: Alito said in a July interview at The Wall Street

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Speaker 1: Journal's opinion section. That interview has now led to calls

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Speaker 1: for a leader to requete himself in a major tax

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Speaker 1: case coming before the court, not because of what he

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Speaker 1: said in the interview, but because one of the writers

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Speaker 1: is a lawyer involved in that case. Despite calls from

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Speaker 1: Democratic senators, Alito has refused to recuse himself, saying there's

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Speaker 1: no valid reason for him not to participate in the

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Speaker 1: case joining me is constitutional law expert David Souper, a

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Speaker 1: professor at Georgetown Law School, tell us a little more

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Speaker 1: about the background of this recusal dispute.

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Speaker 3: Certainly, Justice Leto perceived correctly that he was under considerable

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Speaker 3: criticism in the media and responded in a number of ways,

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Speaker 3: partly by writing an op ed defending himself, and partly

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Speaker 3: by giving two interviews to a lawyer who was interviewing

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Speaker 3: him for the Wall Street Journal. That lawyer is now

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Speaker 3: one of the lawyers behind an effort to have large

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Speaker 3: chunks of our text declared unconstitutional, that is in front

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Speaker 3: of the court. Several people, including a number of Senators,

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Speaker 3: have suggested that Justice Alto should refuse himself because of

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Speaker 3: the ties to the lawyer who twice interviewed him, and

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Speaker 3: Justice Alito has said he will do no such things.

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Speaker 1: A group of Democrats, led by Senatjudiciary Chair Dick Durbin,

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Speaker 1: call for his recusal in a letter to the Chief Justice,

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Speaker 1: and Alito attached his statement in response to a Supreme

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Speaker 1: Court orders list, and if you look at it quickly,

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Speaker 1: it looks like a decision of the court, complete with footnotes.

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Speaker 1: How unusual is it on a scale of.

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Speaker 3: One to ten, pretty close to a ten. I think

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Speaker 3: you can get to a ten if you combine the

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Speaker 3: fact that the very unusual form and that the content

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Speaker 3: is also extremely strange.

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Speaker 1: He said that there was nothing out of the ordinary

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Speaker 1: about the interviews in question, and then he refers to

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Speaker 1: to in footnotes interviews that various justices have done with

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Speaker 1: members of the media and says, well, they didn't recuse

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Speaker 1: themselves when cases involving those media entities came before the court.

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Speaker 1: But I don't know of any case where the journalists

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Speaker 1: then came before the court.

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Speaker 3: I don't either. It's also pretty unusual because Justice Alito

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Speaker 3: himself described this PR campaign as his self defense. Judges

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Speaker 3: talked to journalists to educate the public about the law.

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Speaker 3: All the time, they speak to junior high school civics classes.

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Speaker 3: That's all fine, but he said that no one was

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Speaker 3: defending him, so he would have to defend himself and

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Speaker 3: launched this PR campaign. The lawyer in this case helped

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Speaker 3: him with his PR campaign. Something that people in this

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Speaker 3: town pay tens and hundreds of thousands of dollars for

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Speaker 3: was given to him free. And then the lawyer who

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Speaker 3: did this enormous favor to him is arguing a case

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Speaker 3: in front of the court that's unprecedented to my knowledge.

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Speaker 1: There's also the fact that when the first article was

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Speaker 1: published in April, the justices hadn't yet agreed to hear

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Speaker 1: the case. They agreed in June, and then the second

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Speaker 1: article was published in July. So the timing alone gives

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Speaker 1: the appearance of impropriety.

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Speaker 3: Well, any participation, whether it's in considering whether to take

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Speaker 3: the case or in deciding it is improper if you

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Speaker 3: have a conflict of interest, and when someone has just

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Speaker 3: provided you services which, by your own admission, you felt

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Speaker 3: you badly needed, and those services have enormous value. That's

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Speaker 3: precisely why we have conflict of interest law. There's nothing

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Speaker 3: wrong with his getting these services. He just shouldn't participate

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Speaker 3: in a case that is being litigated by the person

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Speaker 3: who provided them.

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Speaker 1: Something he said is something that I think Justice Thomas

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Speaker 1: has said, which to me, this is the point about ethics.

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Speaker 1: He said that the lawyer Rifkin participated in the interviews

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Speaker 1: as a journalist, not an advocate, and that they didn't

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Speaker 1: discuss the tax case, either directly or indirectly. Well, I mean,

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Speaker 1: that's not the point is it whether they discuss the case.

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Speaker 3: Well, that's certainly not the point. I mean, if a

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Speaker 3: lawyer in the case had given a car or a

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Speaker 3: house to a Supreme Court justice while not discussing the

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Speaker 3: case they were litigating, that justice should still refuse themselves

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Speaker 3: from the case that that lawyer was arguing, because they

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Speaker 3: obviously owe the lawyer or something and will have a

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Speaker 3: temptation to repay it.

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Speaker 1: Judiciary Chairman Dick Durbin's response was quote Justice Alito, of

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Speaker 1: the originalist school of thinking that empty seats on an

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Speaker 1: airplane don't count as gifts, surprises no one by sitting

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Speaker 1: on a case involving a lawyer who honored him with

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Speaker 1: a puff piece in the Wall Street Journal at referring

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Speaker 1: to the two thousand and eight private flight on a

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Speaker 1: jet charted by a billionaire whose hedge fund was linked

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Speaker 1: to several disputes before the court. That was pretty sarcastic,

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Speaker 1: but made the point that, I mean, there are just

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Speaker 1: a string of these ethical lapses.

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Speaker 3: Yes. This one, though, is really more striking, because Justice

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Speaker 3: Alito is saying that he should be able to rise

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Speaker 3: above his debt that he owes this lawyer and decide

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Speaker 3: the case fairly, which shows a fundamental misunderstanding of conflict

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Speaker 3: of interest law. The whole point of conflicts of interest

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Speaker 3: law is that we don't want to ask people to

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Speaker 3: rise above their conflicts, and we don't want to ask

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Speaker 3: the public to trust that that has happened. Instead, we

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Speaker 3: eliminate the conflicts by having people who are conflicted not

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Speaker 3: involved in cases and with judges. The goal is to

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Speaker 3: avoid the appearance of propriety.

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Speaker 1: In this case, maybe Alito is putting all the information

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Speaker 1: out there and saying, let the public decide whether I'm

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Speaker 1: right or wrong.

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Speaker 3: I mean, that might be grounds for the public to

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Speaker 3: vote against his reelection, but of course he isn't subject

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Speaker 3: to re election. The point is not whether the public

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Speaker 3: believes well of him or not. The point is to

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Speaker 3: get an impartial decision on the cases in front of

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Speaker 3: the court. And having a judge decide a case is

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Speaker 3: being pursued by a lawyer who helped him out when

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Speaker 3: he said he needed pr assistance makes it impossible to

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Speaker 3: know whether that case is influenced by the debt he

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Speaker 3: owed that lawyer.

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Speaker 1: The Judiciary chair wrote to Chief Justice Roberts. Can Roberts

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Speaker 1: do anything when Alito says Nope, I'm not going to

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Speaker 1: recuse myself.

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Speaker 3: Yeah, the Chief Justice combined with the other Justice can

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Speaker 3: do quite a great deal. Towards the end of Justice

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Speaker 3: Douglas's service on the Court, the other justice concluded that

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Speaker 3: he didn't have enough mental acuity to make responsible decisions,

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Speaker 3: so they informally agreed that they would not decide any

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Speaker 3: case in which his was the fifth vote. The other

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Speaker 3: justices can similarly decide that they will not decide any

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Speaker 3: case in which Justice Alitos is the fifth vote, or

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Speaker 3: they could simply vote to reject this case because they

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Speaker 3: can't hear it. In impartial circumstances, it's called dismissed as

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Speaker 3: improvidently granted or dig. They can dig the case to

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Speaker 3: prevent Justice Alito from participating in it.

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Speaker 1: And Justice Clarence Thomas seems to be in a class

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Speaker 1: all by himself as far as ethical controversies with luxury

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Speaker 1: trips paid for by mega GOP donor Harlan Crow and

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Speaker 1: real estate deals. Thomas just revealed that last year alone,

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Speaker 1: he went on three trips on Crow's private plane, and

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Speaker 1: yet Thomas shows no inclination to step down.

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Speaker 3: If you take these gifts in the first place, and

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Speaker 3: if you see yourself as responding to a fairly narrow

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Speaker 3: segment of the legal community in the political environment, perhaps

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Speaker 3: you don't care about the appearance you give to the

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Speaker 3: broader public. But this goes way beyond Justice Alito or

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Speaker 3: Justice Thomas. There's seven other justices and it only takes

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Speaker 3: five of them to make an order. They can adopt

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Speaker 3: an ethics code, they can adopt rules for accusal, and

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Speaker 3: it does not have to be unanimous. Many orders of

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Speaker 3: the Court, of course, are not unanimous. So the other

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Speaker 3: seven need to step up if they want the public

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Speaker 3: to respect the court and if they want the Court

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Speaker 3: to do its business in a way that's worthy of

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Speaker 3: the public's company.

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Speaker 1: Durbin said, why do these justices continue to take a

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Speaker 1: wrecking ball to the reputation of the highest court in

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Speaker 1: the land. It seems like a three prong problem. You

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Speaker 1: have the court's ethics controversies, You have the limited transparency

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Speaker 1: at the court, and then you have also these far

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Speaker 1: reaching rulings that bring the public's attention to the court

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Speaker 1: and its power.

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Speaker 3: Yes, and that's the combination. Now, there's a majority of

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Speaker 3: the Court that is very conservative, and even on a

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Speaker 3: case that neither Justice Thomas nor Justice Alito were participating

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Speaker 3: in there would still be a conservative majority on the Court.

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Speaker 3: The question is why do they insist on proceeding in

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Speaker 3: a way that is at once there in bold and

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Speaker 3: at the same time raises serious ethical questions, And that's

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Speaker 3: very hard to understand. And then why the other justices

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Speaker 3: don't seem to see this is the problem worth addressing

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Speaker 3: is also hard to understand.

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Speaker 1: What do you make of these defiant attitudes from Thomas

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Speaker 1: and Alito?

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Speaker 3: Well, I think Justice Thomas came on to the Court

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Speaker 3: with a sense that much of the world was already

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Speaker 3: against him. His confirmation went through by the barest of

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Speaker 3: margins and has been fairly dismissive of public opinion since then.

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Speaker 3: Justice Alito's rise so the Court was far less controversial,

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Speaker 3: so it's harder to come up with a personal explanation

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Speaker 3: of his definant attitude on these ethics issues.

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Speaker 1: Justice Kavanaugh did say that the Supreme Court is going

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Speaker 1: to be taking action soon to address ethics concerns. Do

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Speaker 1: you think that means that they're going to come out

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Speaker 1: with an ethics code or it could be anything.

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Speaker 3: It could be anything. It was a very vague statement

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Speaker 3: and hard to know. I hope that he's right. I

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Speaker 3: hope they do come out with an ethics code worthy

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Speaker 3: of the name. I strongly suspect even what both Justice

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Speaker 3: Leader and Justice Thomas have indicated that they won't be

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Speaker 3: able to come up with a strong ethics code that

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Speaker 3: gets the unanimous support of the Court. But they don't

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Speaker 3: need it, and they shouldn't hold off for it.

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Speaker 1: We spoke before about Alito in his view that Congress

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Speaker 1: had no authority to impose an ethics code on the justices,

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Speaker 1: and then Justice Elena Kagan told an audience of judges

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Speaker 1: and lawyers attending the Ninth Circuit can Congress do various

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Speaker 1: things to regulate the Supreme Court? I think the answer

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Speaker 1: is yes, and that it just can't be that the

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Speaker 1: Court is the only institution that somehow is not subject

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Speaker 1: to checks and balances from anybody else. We're not imperial.

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Speaker 1: So obviously there's a break between at least Justice Kagan

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Speaker 1: and Justice Alito on this, and I suspect other justices

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Speaker 1: as well.

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Speaker 3: It would seem. I mean, that's a matter of simple

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Speaker 3: reading of the Constitution that is absolutely plain. The Court's

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Speaker 3: jurisdiction on most matters is subject to Congress's choice, and

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Speaker 3: Congress can serve condition that jurisdiction in any way that

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Speaker 3: doesn't dictate outcomes to particular cases. So she's certainly right

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Speaker 3: about that. That statement suggests that she strongly disagrees with

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Speaker 3: Justice Alito about Congress's power. I hope she also disagrees

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Speaker 3: with him about the desirability of forcing Congress to act.

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Speaker 3: I hope there are four other justices that share feelings.

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Speaker 1: You talked about the various things that could be done

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Speaker 1: by the Supreme Court justices. But do you think that

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Speaker 1: anything will really be done in the end about either

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Speaker 1: Justice Alito or Justice Thomas by the Court itself.

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Speaker 3: I don't think they'll take action directly against them. That's

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Speaker 3: not how I close system like the Supreme Court typically works.

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Speaker 3: But I think they might very well establish a code

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Speaker 3: of ethics going forward. It won't deal with all the

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Speaker 3: problems we've had. It won't deal with how much, particularly

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Speaker 3: these two justices have committed themselves to a narrow set

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Speaker 3: of right wing billionaires, but it can limit what happens

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Speaker 3: going forward and hopefully keep this sort of thing from snowballing,

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Speaker 3: as it obviously has with these two justices.

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Speaker 1: And the new term begins in less than three weeks,

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Speaker 1: so we shall see. Thanks so much, David. That's Professor

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Speaker 1: David super of Georgetown Law School. The Fifth Circuit Court

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Speaker 1: of Appeals has concluded that the Biden White House, the

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Speaker 1: Surgeon General, the CDC, and the FBI likely violated the

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Speaker 1: First Amendment by coercing social media platforms to take down

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Speaker 1: posts on their sites at times with intimidating messages and

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Speaker 1: threats of adverse action. The White House has said that

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Speaker 1: it just pushed social media companies to adhere to their

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Speaker 1: own rules about content.

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Speaker 4: We have promoted responsible actions to protect public health, safety,

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Speaker 4: and security when confronted by challenges like a deadly pandemic

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Speaker 4: and foreign attacks on our elections, and we have consistently

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Speaker 4: made clear that we believe social media companies have a

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Speaker 4: critical responsibility to take account of the effects of their

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Speaker 4: platforms that they have on the American people while making

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Speaker 4: independent decisions about the content of their platforms.

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Speaker 1: It's a ruling with consequences for the government's ability to

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Speaker 1: combat false information about voting rights, COVID and other issues

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Speaker 1: spread on social media. The appellate court did significantly whittle

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Speaker 1: down a federal judges order that effectively blocked multiple government

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Speaker 1: agencies from contacting platforms such as Facebook and x formerly

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Speaker 1: Twitter to urge that content be taken down. My guest

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Speaker 1: is Professor Eric Goleman of Santa Clara University's School of Law.

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Speaker 1: He co directs the law school's High Tech Law Institute. Eric,

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Speaker 1: what was the main issue here?

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Speaker 5: The basic question is when were conversations that were taking

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Speaker 5: place between the government and social media services becoming so

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Speaker 5: coursive or so directed that the social media services were

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Speaker 5: doing the government's bidding and removing content of their direction.

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Speaker 1: Did the Fifth Circuit find that there were actual threats

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Speaker 1: made to social media companies?

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Speaker 5: It did, But the threats are always a little bit vague.

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Speaker 5: It's not always as easy as you must do X

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Speaker 5: or we will throw you in jail. The threats are

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Speaker 5: often more indirect, and that's one of the many challenges

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Speaker 5: from this opinion. It wasn't entirely clear to me exactly

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Speaker 5: which threats mattered were when they even became threats, and.

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Speaker 1: Did the court specify which agencies or departments were subject

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Speaker 1: to this injunction?

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Speaker 5: They did, but the actual implementation of the injunction is

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Speaker 5: no more clear than before. The opinion what the Court

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Speaker 5: said is that certain branch of the government, specifically they

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Speaker 5: called out the White House and the FBI must comply

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Speaker 5: with the rules articulated in the court. But the Court

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Speaker 5: didn't provide concrete boundaries around those rules. It simply said,

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Speaker 5: you must comply with the Constitution. So, in a sense,

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Speaker 5: I don't know how the executive branches are going to

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Speaker 5: implement what the court's ordering them to do, because it's

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Speaker 5: saying comply with the constitution. But obviously the people who

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Speaker 5: made the decision in the first place weren't clear what

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Speaker 5: was constitutional what wasn't, and I don't know they're in

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Speaker 5: clearer now.

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Speaker 1: It also says they can't significantly encourage platforms to remove

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Speaker 1: lawful content. So what does significantly encourage mean exactly?

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Speaker 5: That's the point is that the significant encouragement is the

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Speaker 5: boundary around the constitutional protections. In other words, if they're

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Speaker 5: significantly encouraging the removal of constitutional content, that's not constitutional,

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Speaker 5: that's a violation of the First Amendment. However, what constitutes

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Speaker 5: this significant encouragement is not made clear by the opinion.

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Speaker 5: They do point to a few examples, but I don't

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Speaker 5: think I would know how to actually interpret that language

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Speaker 5: the next time it came up. And so what's likely

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Speaker 5: to happen is that if this opinion stands, I think

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Speaker 5: that the regulated anties are going to become far less

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Speaker 5: conversational with the social media services. They're not going to

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Speaker 5: take a chance about violating the rule. And so the

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Speaker 5: court standard actually clears out a lot of permitted behavior today.

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Speaker 5: Because the boundary is so unclear, people are going to

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Speaker 5: err on the side of being cautious.

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Speaker 1: Well that's what the Republicans who brought this case want,

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Speaker 1: isn't it. The Missouri ag Andrew Bailey said that the

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Speaker 1: ruling was another brick in the wall of separation between

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Speaker 1: tech and state.

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Speaker 5: No doubt, there are many people who wish that the

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Speaker 5: government would not be in conversations with social media services,

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Speaker 5: and yet the Court's opinion really casts a shadow over

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Speaker 5: dialogues that take place every day, all the time throughout

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Speaker 5: our entire country between governments and private entities, not just

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Speaker 5: social media services. This concern about significant encouragement or coercion

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Speaker 5: comes up across the board in lots of spaces, and

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Speaker 5: the Quirt standard puts potentially many or all of those

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Speaker 5: in play, opens up the door for lots of people

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Speaker 5: to challenge government conversations that are just in the public

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Speaker 5: health and safety interest. Them's just trying to do its

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Speaker 5: job to protected citizens, and now this court casts a

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Speaker 5: doubt on the legitimacy of those efforts.

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Speaker 1: The Biden administration had said that it was pushing social

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Speaker 1: media companies to just adhere to their own rules about content.

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Speaker 1: Did you see a First Amendment violation here?

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Speaker 5: There's no doubt that some individual employees of the government

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Speaker 5: push the frontiers, perhaps to or over the limit. That's

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Speaker 5: just the nature of individual government employees so zealously trying

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Speaker 5: to do their job. They might get a little bit excited.

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Speaker 5: Having said that, I think that overall a number of

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Speaker 5: the social media services appreciate the feedback from the government.

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Speaker 5: They want to hear from the government because the government

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Speaker 5: sees things that they don't or is a good neutral

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Speaker 5: source of assessing risks in the community that need to

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Speaker 5: be addressed, and so it's helpful for the social media

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Speaker 5: services to hear from the government the risk that the

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Speaker 5: government is assessing what might be done to address those risks.

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Speaker 5: That's actually helpful and that informs the social media service's

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Speaker 5: own independent At a turtle discretion So the line between that

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Speaker 5: kind of activity and the over zealous pushing by some

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Speaker 5: government employees is really sin and we want fewer of

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Speaker 5: the Overzella's stuff, but we definitely want the other stuff

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Speaker 5: to continue. And that's the part that I don't think

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Speaker 5: the government eployees are going to know where they are

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Speaker 5: on that spectrum.

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Speaker 1: So do you think this will inhibit, you know, the

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Speaker 1: federal government from communicating with the public about like key

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Speaker 1: public health issues or the twenty twenty four election.

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Speaker 5: I don't think it's likely to discourage the government from

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Speaker 5: continue to communicate to the public, but it will definitely

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Speaker 5: discourage some of the conversations that were taking place directly

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Speaker 5: with social media services about those same issues, educating in

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Speaker 5: social media services about the kinds of harms that occurring

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Speaker 5: in the election sphere or in the public health sphere

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Speaker 5: with things like COVID. The government was calling attention in

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Speaker 5: particular problems that the government was trying to address in

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Speaker 5: its public facing efforts. It also wanted the social media

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Speaker 5: services to know about those efforts and potentially choose to

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Speaker 5: interview on the government's behalf as well. And it's that

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Speaker 5: latter piece that I think is less likely to happen,

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Speaker 5: and social media services therefore may feel less likely to

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Speaker 5: even consider what the government's saying given the ruling in

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Speaker 5: this case, With this.

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Speaker 1: Decision by the Fifth Circuit, are there any agencies or

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Speaker 1: people who can't talk to the social media companies because

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Speaker 1: of this ruling?

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Speaker 5: No, all the government agencies are still allowed to talk

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Speaker 5: with the social media services, but they're not allowed to

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Speaker 5: coerce or significantly encourage the removal of constitutionally protected material.

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Speaker 5: And yet that legal standard doesn't actually answer the question

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Speaker 5: about which of those conversations are permissible. So even though

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Speaker 5: conversations will still take place, they're going to be constrained,

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Speaker 5: they're going to be chilled, they're going to be restricted

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Speaker 5: because of the fact that the boundary is unclear.

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Speaker 1: I thought it was interesting that doctor Anthony Fauci, who

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Speaker 1: came under such criticism from conservatives during COVID, you know,

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Speaker 1: the Fifth Circuit said, no, he did, Okay, he was fine.

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Speaker 5: Yeah, you know, I think the Fifth Circuit was trying

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Speaker 5: not to engage in partisan politics. So Fauci was, you know,

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Speaker 5: the targeted conservative ayre, and so they weren't pandering to

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Speaker 5: that ire. And yet the entire structure of the opinion

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Speaker 5: really does validate a lot of the conservative objectives in

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Speaker 5: a way that I think fundamentally in their minds, part

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Speaker 5: of the health and safety So it's kind of like,

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Speaker 5: what do we really want from the government? And I

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Speaker 5: don't know that I share the Fifth Circuit's vision of

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Speaker 5: what it wants from the government.

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Speaker 1: I always point out that the Fifth Circuit is considered

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Speaker 1: the most conservative appellate court in the country, and we've

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Speaker 1: seen these judges make rulings that were outliers before, and

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Speaker 1: it's getting reversed by the Supreme Court more than it

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Speaker 1: used to.

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Speaker 5: Well, the good news is that this particular opinion fixed

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Speaker 5: an even worse District Court opinion that was a true outlier,

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Speaker 5: and even that opinion was too much for the Fifth Circuit.

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Speaker 5: They could not stand behind this opinion that had just

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Speaker 5: gone rogue on the rule of law. So in that sense,

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Speaker 5: the Fifth circu opinion is definitely better than the District

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Speaker 5: Court opinion that preceded it. And yet I don't know

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Speaker 5: what would happen if the Fifth Circuit opinion has appealed

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Speaker 5: to the Supreme Court.

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Speaker 1: Tell us about Judge Doddy's order.

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Speaker 5: There's just a few things to say about it. Really,

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Speaker 5: Judge Douty has been a go to judge for the Conservatives,

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Speaker 5: hoping to basically find a way to make a venue

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Speaker 5: selection that gives them the best odds of success in court.

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Speaker 5: And in this particular case, he issued an opinion on

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Speaker 5: July fourth, which is a federal holiday. The federal courts

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Speaker 5: are closed on July fourth, but he deliberately issued the

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Speaker 5: opinion on July fourth, as I think his way of

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Speaker 5: saying that he was celebrating the independence that we obtained

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Speaker 5: from the British by dropping one hundred and fifty page

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Speaker 5: opinion that just completely disregarded the present about when government

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Speaker 5: dialogues with it actors becomes an unconstitutional conversation. And as

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Speaker 5: I said, it was so far beyond what even the

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Speaker 5: Fifth Circuit to could tolerate. The Fifth Circuit overturned the

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Speaker 5: vast majority of what he had to say. And it's

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Speaker 5: just a sign that, you know, conservative plaintiffs are looking

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Speaker 5: to increase their odds of getting favorable of rulings by

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Speaker 5: picking judges like Judge Dowdy and finding ways to basically

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Speaker 5: activate him to advance their agenda. It really was, I

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Speaker 5: think a terrible display of our judicial system that he

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Speaker 5: was issued this opinion that was so far unsupported by

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Speaker 5: the rule of law, and dropping the opinion on the

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Speaker 5: fourth of July as a statement that just I thought

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Speaker 5: was really not cool.

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Speaker 1: I didn't know it was on the fourth of July.

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Speaker 5: I guess I took that day off, as said everyone else,

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Speaker 5: And so you know, most people were like, really dropping

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Speaker 5: one hundred and fifty page opinion on central holiday. It

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Speaker 5: was like completely disrespectful to the hundreds of thousands of

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Speaker 5: people who were going to be affected by this opinion,

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Speaker 5: who all had to take their holiday to go read it.

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Speaker 5: It was just not cool, and the Fifth Circuit couldn't

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Speaker 5: abide by it.

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Speaker 1: Now, Republicans in this case and in the House have

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Speaker 1: accused government officials, as you referred to, of actively colluding

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Speaker 1: with the platforms to influence public conversation. Is this their

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Speaker 1: biggest victory so far?

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Speaker 5: It's definitely validating of some of their concerns. And I

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Speaker 5: think that anyone who reads the fact statement of the

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Speaker 5: case and sees the insistent messages from the government will

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Speaker 5: feel a little troubled by them. You know, there's definitely

439
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Speaker 5: some fire under the smoke about whether or not government

440
00:26:37,920 --> 00:26:40,120
Speaker 5: officials went too far I saw in the shouble by

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Speaker 5: seeing some of the evidence produced in this case. Yet,

442
00:26:43,240 --> 00:26:46,640
Speaker 5: the bigger question is what do we want the government

443
00:26:46,680 --> 00:26:51,000
Speaker 5: to do differently, and how do we articulate the guidance

444
00:26:51,000 --> 00:26:52,760
Speaker 5: to them to get them to do the job we

445
00:26:52,840 --> 00:26:55,200
Speaker 5: want and to still take advantage of act. So the

446
00:26:55,200 --> 00:26:57,680
Speaker 5: private sector plays a key role in advan saying public

447
00:26:57,760 --> 00:27:00,440
Speaker 5: health and safety, and so in that sense, it makes

448
00:27:00,480 --> 00:27:04,480
Speaker 5: me question what the people who champion the concerns about

449
00:27:04,520 --> 00:27:08,680
Speaker 5: government overreach actually really want. Do they want less government

450
00:27:08,760 --> 00:27:11,720
Speaker 5: at a risk or cost of public health and safety?

451
00:27:12,080 --> 00:27:15,959
Speaker 5: Do they just hate the government when their team is

452
00:27:16,000 --> 00:27:19,240
Speaker 5: not the one running it, or do they think that

453
00:27:19,359 --> 00:27:21,840
Speaker 5: there's going to be some way to navigate this extremely

454
00:27:21,880 --> 00:27:24,440
Speaker 5: fine line that's going to allow them to only get

455
00:27:24,480 --> 00:27:27,480
Speaker 5: the good government intervention and screen out all the bad.

456
00:27:27,760 --> 00:27:30,840
Speaker 5: And that ladder hope I think is just not supportable.

457
00:27:31,040 --> 00:27:33,879
Speaker 5: I do want to add one other thing. Almost everything

458
00:27:34,359 --> 00:27:37,280
Speaker 5: that the Biden administration was accused of in the case

459
00:27:37,640 --> 00:27:40,080
Speaker 5: where the facts were showing what it was doing to

460
00:27:40,240 --> 00:27:43,439
Speaker 5: converse with the social media services, the Trump administration was

461
00:27:43,480 --> 00:27:46,800
Speaker 5: doing equally bad or worse things. That just was not

462
00:27:46,840 --> 00:27:49,879
Speaker 5: an issue in this opinion, but it was absolutely the case,

463
00:27:50,040 --> 00:27:55,000
Speaker 5: and state governments, including those that are led by Republicans,

464
00:27:55,200 --> 00:27:58,440
Speaker 5: are doing equally bad or worse things as well. It's

465
00:27:58,440 --> 00:28:00,679
Speaker 5: not really a problem with the Biden ministry. It's a

466
00:28:00,720 --> 00:28:04,040
Speaker 5: problem with the government and what we want from the government,

467
00:28:04,080 --> 00:28:06,600
Speaker 5: and so to think that this is a Biden administration

468
00:28:06,680 --> 00:28:08,840
Speaker 5: problem is really a misunderstanding the problem.

469
00:28:09,040 --> 00:28:12,520
Speaker 1: Eric, do you think the Justice Department should appeal this

470
00:28:12,640 --> 00:28:13,560
Speaker 1: to the Supreme Court.

471
00:28:13,680 --> 00:28:15,840
Speaker 5: I think it has to appeal the case to the

472
00:28:15,840 --> 00:28:20,680
Speaker 5: Supreme Court because the opinion, although it's narrowed the injunction

473
00:28:20,840 --> 00:28:24,520
Speaker 5: quite a bit, it still leaves a core injunction against

474
00:28:24,720 --> 00:28:29,320
Speaker 5: key executive branch agencies, restricting their ability to do their

475
00:28:29,400 --> 00:28:33,240
Speaker 5: job and leaving such ambiguity about how they can do

476
00:28:33,320 --> 00:28:37,359
Speaker 5: their job that it seems like they need the Supreme

477
00:28:37,359 --> 00:28:40,920
Speaker 5: Court to give the government more guidance. It wouldn't surprise

478
00:28:41,000 --> 00:28:44,280
Speaker 5: me if the states that are the plaintiffs in this

479
00:28:44,360 --> 00:28:47,120
Speaker 5: case also appeal the ruling because they want to pick

480
00:28:47,200 --> 00:28:48,960
Speaker 5: up the stuff they had gotten in the district court

481
00:28:49,040 --> 00:28:51,800
Speaker 5: that the Fifth Circuit took away. So it's entirely possible

482
00:28:51,800 --> 00:28:54,080
Speaker 5: both sides will be encouraging the Supreme Court to take

483
00:28:54,120 --> 00:28:54,760
Speaker 5: this case.

484
00:28:55,000 --> 00:28:59,720
Speaker 1: And just explain the cases that they're considering involving Florida

485
00:28:59,800 --> 00:29:04,200
Speaker 1: and Texas laws that would restrict the editorial discretion of

486
00:29:04,280 --> 00:29:05,520
Speaker 1: social media platforms.

487
00:29:06,080 --> 00:29:10,640
Speaker 5: Yeah. So, in twenty twenty one, both Florida and Texas

488
00:29:10,680 --> 00:29:15,120
Speaker 5: passed laws called social media censorship laws, and these laws

489
00:29:15,640 --> 00:29:20,240
Speaker 5: give a significant amount of instruction to social media services

490
00:29:20,240 --> 00:29:24,080
Speaker 5: about how to run their editorial functions. Among other things,

491
00:29:24,120 --> 00:29:27,800
Speaker 5: it says that if the social media services publish policies,

492
00:29:28,200 --> 00:29:32,320
Speaker 5: they must adhere to the policies. And both laws say

493
00:29:32,520 --> 00:29:35,479
Speaker 5: that there are certain types of editoral decisions that the

494
00:29:35,520 --> 00:29:39,000
Speaker 5: services cannot make. For example, in the Texas law, it

495
00:29:39,080 --> 00:29:44,760
Speaker 5: says that the services cannot engage in viewpoint discrimination when

496
00:29:44,760 --> 00:29:47,680
Speaker 5: they engage in their editorial functions. I don't know what

497
00:29:47,720 --> 00:29:50,680
Speaker 5: that means. I don't understand that terminology. But the point

498
00:29:50,720 --> 00:29:55,600
Speaker 5: is that the Texas legislature specified and told the social

499
00:29:55,600 --> 00:29:59,000
Speaker 5: media services how to run their business. Now, that's exactly

500
00:29:59,080 --> 00:30:02,800
Speaker 5: what the circuit says in this opinion that the government

501
00:30:02,800 --> 00:30:05,920
Speaker 5: could not do. The government could not tell the social

502
00:30:05,920 --> 00:30:08,440
Speaker 5: media services that they had to publish certain items or

503
00:30:08,440 --> 00:30:11,160
Speaker 5: had to remove certain items. Yet the Texas law did

504
00:30:11,200 --> 00:30:14,320
Speaker 5: exactly that. And the worst part is the Fifth Circuit

505
00:30:14,560 --> 00:30:18,520
Speaker 5: upheld that law, saying that was a constitutional intervention in

506
00:30:18,680 --> 00:30:22,760
Speaker 5: the editorial discretion of the social media services to decide

507
00:30:22,760 --> 00:30:25,720
Speaker 5: what content with search or their audience. I cannot reconcile

508
00:30:25,800 --> 00:30:29,360
Speaker 5: those two opinions. The opinions that the Court issued most recently,

509
00:30:29,440 --> 00:30:33,640
Speaker 5: saying that the executive branch had engaged in sensorial instructions

510
00:30:33,720 --> 00:30:37,720
Speaker 5: to social media services is almost indistinguishable from what the

511
00:30:37,760 --> 00:30:42,760
Speaker 5: Texas law did to order sensorial interventions into social media

512
00:30:42,800 --> 00:30:45,880
Speaker 5: services at a total discression, and yet the Fifth Circuit

513
00:30:45,920 --> 00:30:47,280
Speaker 5: reached inconsistent results.

514
00:30:47,760 --> 00:30:51,480
Speaker 1: Supreme Court has asked the Biden administration for an opinion,

515
00:30:51,560 --> 00:30:54,600
Speaker 1: and the Biden administration urged the Supreme Court to strike

516
00:30:54,680 --> 00:30:57,400
Speaker 1: down key parts of the Florida and Texas laws since

517
00:30:57,440 --> 00:31:00,320
Speaker 1: the measures have divided the federal appellate courts, and it

518
00:31:00,320 --> 00:31:03,200
Speaker 1: seemed like the Supreme Court has to almost take that case.

519
00:31:03,240 --> 00:31:04,720
Speaker 1: What are they really dolling about?

520
00:31:04,920 --> 00:31:07,520
Speaker 5: To be fair, I don't know why the Supreme Court

521
00:31:07,520 --> 00:31:10,880
Speaker 5: has not yet granted review in the Texas and Florida

522
00:31:10,920 --> 00:31:15,920
Speaker 5: social media censorship cases. Those cases grais essential questions about

523
00:31:15,960 --> 00:31:20,000
Speaker 5: the future of Internet regulation and if the Supreme Court

524
00:31:20,080 --> 00:31:22,560
Speaker 5: doesn't take these cases now, they're just going to get

525
00:31:22,800 --> 00:31:26,440
Speaker 5: dozens more cases coming at them raising the exact same issues.

526
00:31:26,520 --> 00:31:29,400
Speaker 5: So to me, it seems like they have to take

527
00:31:29,400 --> 00:31:33,200
Speaker 5: those cases, they have to get more guidance, and ideally

528
00:31:33,480 --> 00:31:37,320
Speaker 5: they're going to clip the wings of both the executive

529
00:31:37,360 --> 00:31:41,200
Speaker 5: branch decision makers and the state legislatures that are right

530
00:31:41,240 --> 00:31:44,480
Speaker 5: now having their way with social media services telling them

531
00:31:44,480 --> 00:31:45,560
Speaker 5: what to do when they shouldn't be.

532
00:31:45,640 --> 00:31:47,400
Speaker 1: Always a pleasure to have you on the show, Eric,

533
00:31:47,440 --> 00:31:50,880
Speaker 1: thanks so much. That's Professor Eric goldban Co, director of

534
00:31:50,920 --> 00:31:54,080
Speaker 1: the High Tech Law Institute at the Santa Clara University

535
00:31:54,160 --> 00:31:56,360
Speaker 1: School of Law. And that's it for this edition of

536
00:31:56,360 --> 00:31:59,000
Speaker 1: The Bloomberg Law Show. Remember you can always get the

537
00:31:59,080 --> 00:32:02,560
Speaker 1: latest legal news, honor Bloomberg Law podcasts. You can find

538
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Speaker 1: them on Apple Podcasts, Spotify, and at www dot Bloomberg

539
00:32:07,200 --> 00:32:11,000
Speaker 1: dot com, slash podcast, Slash Law, and remember to tune

540
00:32:11,000 --> 00:32:14,240
Speaker 1: into The Bloomberg Law Show every weeknight at ten pm

541
00:32:14,320 --> 00:32:17,880
Speaker 1: Wall Street Time. I'm June Grosso and you're listening to

542
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Speaker 1: Bloomberg