Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 1: At a judicial conference in August aired on CSPAN, Justice
Speaker 1: Elena Kagan said that the Supreme Court, like every branch
Speaker 1: of government, is subject to checks and balances.
Speaker 2: It just can't be that the Court is the only
Speaker 2: institution that somehow is not subject to any checks and
Speaker 2: balances from anybody else. I mean, we're not imperial, and
Speaker 2: we too are a part of a checking and balancing
Speaker 2: system in various ways. So can Congress do various things
Speaker 2: to regulate the Supreme Court? I think the answer is yes.
Speaker 1: That may not seem like a particularly surprising opinion, but
Speaker 1: it is diametrically opposed to what her colleague, Justice Samuel
Speaker 1: Alito said in a July interview at The Wall Street
Speaker 1: Journal's opinion section. That interview has now led to calls
Speaker 1: for a leader to requete himself in a major tax
Speaker 1: case coming before the court, not because of what he
Speaker 1: said in the interview, but because one of the writers
Speaker 1: is a lawyer involved in that case. Despite calls from
Speaker 1: Democratic senators, Alito has refused to recuse himself, saying there's
Speaker 1: no valid reason for him not to participate in the
Speaker 1: case joining me is constitutional law expert David Souper, a
Speaker 1: professor at Georgetown Law School, tell us a little more
Speaker 1: about the background of this recusal dispute.
Speaker 3: Certainly, Justice Leto perceived correctly that he was under considerable
Speaker 3: criticism in the media and responded in a number of ways,
Speaker 3: partly by writing an op ed defending himself, and partly
Speaker 3: by giving two interviews to a lawyer who was interviewing
Speaker 3: him for the Wall Street Journal. That lawyer is now
Speaker 3: one of the lawyers behind an effort to have large
Speaker 3: chunks of our text declared unconstitutional, that is in front
Speaker 3: of the court. Several people, including a number of Senators,
Speaker 3: have suggested that Justice Alto should refuse himself because of
Speaker 3: the ties to the lawyer who twice interviewed him, and
Speaker 3: Justice Alito has said he will do no such things.
Speaker 1: A group of Democrats, led by Senatjudiciary Chair Dick Durbin,
Speaker 1: call for his recusal in a letter to the Chief Justice,
Speaker 1: and Alito attached his statement in response to a Supreme
Speaker 1: Court orders list, and if you look at it quickly,
Speaker 1: it looks like a decision of the court, complete with footnotes.
Speaker 1: How unusual is it on a scale of.
Speaker 3: One to ten, pretty close to a ten. I think
Speaker 3: you can get to a ten if you combine the
Speaker 3: fact that the very unusual form and that the content
Speaker 3: is also extremely strange.
Speaker 1: He said that there was nothing out of the ordinary
Speaker 1: about the interviews in question, and then he refers to
Speaker 1: to in footnotes interviews that various justices have done with
Speaker 1: members of the media and says, well, they didn't recuse
Speaker 1: themselves when cases involving those media entities came before the court.
Speaker 1: But I don't know of any case where the journalists
Speaker 1: then came before the court.
Speaker 3: I don't either. It's also pretty unusual because Justice Alito
Speaker 3: himself described this PR campaign as his self defense. Judges
Speaker 3: talked to journalists to educate the public about the law.
Speaker 3: All the time, they speak to junior high school civics classes.
Speaker 3: That's all fine, but he said that no one was
Speaker 3: defending him, so he would have to defend himself and
Speaker 3: launched this PR campaign. The lawyer in this case helped
Speaker 3: him with his PR campaign. Something that people in this
Speaker 3: town pay tens and hundreds of thousands of dollars for
Speaker 3: was given to him free. And then the lawyer who
Speaker 3: did this enormous favor to him is arguing a case
Speaker 3: in front of the court that's unprecedented to my knowledge.
Speaker 1: There's also the fact that when the first article was
Speaker 1: published in April, the justices hadn't yet agreed to hear
Speaker 1: the case. They agreed in June, and then the second
Speaker 1: article was published in July. So the timing alone gives
Speaker 1: the appearance of impropriety.
Speaker 3: Well, any participation, whether it's in considering whether to take
Speaker 3: the case or in deciding it is improper if you
Speaker 3: have a conflict of interest, and when someone has just
Speaker 3: provided you services which, by your own admission, you felt
Speaker 3: you badly needed, and those services have enormous value. That's
Speaker 3: precisely why we have conflict of interest law. There's nothing
Speaker 3: wrong with his getting these services. He just shouldn't participate
Speaker 3: in a case that is being litigated by the person
Speaker 3: who provided them.
Speaker 1: Something he said is something that I think Justice Thomas
Speaker 1: has said, which to me, this is the point about ethics.
Speaker 1: He said that the lawyer Rifkin participated in the interviews
Speaker 1: as a journalist, not an advocate, and that they didn't
Speaker 1: discuss the tax case, either directly or indirectly. Well, I mean,
Speaker 1: that's not the point is it whether they discuss the case.
Speaker 3: Well, that's certainly not the point. I mean, if a
Speaker 3: lawyer in the case had given a car or a
Speaker 3: house to a Supreme Court justice while not discussing the
Speaker 3: case they were litigating, that justice should still refuse themselves
Speaker 3: from the case that that lawyer was arguing, because they
Speaker 3: obviously owe the lawyer or something and will have a
Speaker 3: temptation to repay it.
Speaker 1: Judiciary Chairman Dick Durbin's response was quote Justice Alito, of
Speaker 1: the originalist school of thinking that empty seats on an
Speaker 1: airplane don't count as gifts, surprises no one by sitting
Speaker 1: on a case involving a lawyer who honored him with
Speaker 1: a puff piece in the Wall Street Journal at referring
Speaker 1: to the two thousand and eight private flight on a
Speaker 1: jet charted by a billionaire whose hedge fund was linked
Speaker 1: to several disputes before the court. That was pretty sarcastic,
Speaker 1: but made the point that, I mean, there are just
Speaker 1: a string of these ethical lapses.
Speaker 3: Yes. This one, though, is really more striking, because Justice
Speaker 3: Alito is saying that he should be able to rise
Speaker 3: above his debt that he owes this lawyer and decide
Speaker 3: the case fairly, which shows a fundamental misunderstanding of conflict
Speaker 3: of interest law. The whole point of conflicts of interest
Speaker 3: law is that we don't want to ask people to
Speaker 3: rise above their conflicts, and we don't want to ask
Speaker 3: the public to trust that that has happened. Instead, we
Speaker 3: eliminate the conflicts by having people who are conflicted not
Speaker 3: involved in cases and with judges. The goal is to
Speaker 3: avoid the appearance of propriety.
Speaker 1: In this case, maybe Alito is putting all the information
Speaker 1: out there and saying, let the public decide whether I'm
Speaker 1: right or wrong.
Speaker 3: I mean, that might be grounds for the public to
Speaker 3: vote against his reelection, but of course he isn't subject
Speaker 3: to re election. The point is not whether the public
Speaker 3: believes well of him or not. The point is to
Speaker 3: get an impartial decision on the cases in front of
Speaker 3: the court. And having a judge decide a case is
Speaker 3: being pursued by a lawyer who helped him out when
Speaker 3: he said he needed pr assistance makes it impossible to
Speaker 3: know whether that case is influenced by the debt he
Speaker 3: owed that lawyer.
Speaker 1: The Judiciary chair wrote to Chief Justice Roberts. Can Roberts
Speaker 1: do anything when Alito says Nope, I'm not going to
Speaker 1: recuse myself.
Speaker 3: Yeah, the Chief Justice combined with the other Justice can
Speaker 3: do quite a great deal. Towards the end of Justice
Speaker 3: Douglas's service on the Court, the other justice concluded that
Speaker 3: he didn't have enough mental acuity to make responsible decisions,
Speaker 3: so they informally agreed that they would not decide any
Speaker 3: case in which his was the fifth vote. The other
Speaker 3: justices can similarly decide that they will not decide any
Speaker 3: case in which Justice Alitos is the fifth vote, or
Speaker 3: they could simply vote to reject this case because they
Speaker 3: can't hear it. In impartial circumstances, it's called dismissed as
Speaker 3: improvidently granted or dig. They can dig the case to
Speaker 3: prevent Justice Alito from participating in it.
Speaker 1: And Justice Clarence Thomas seems to be in a class
Speaker 1: all by himself as far as ethical controversies with luxury
Speaker 1: trips paid for by mega GOP donor Harlan Crow and
Speaker 1: real estate deals. Thomas just revealed that last year alone,
Speaker 1: he went on three trips on Crow's private plane, and
Speaker 1: yet Thomas shows no inclination to step down.
Speaker 3: If you take these gifts in the first place, and
Speaker 3: if you see yourself as responding to a fairly narrow
Speaker 3: segment of the legal community in the political environment, perhaps
Speaker 3: you don't care about the appearance you give to the
Speaker 3: broader public. But this goes way beyond Justice Alito or
Speaker 3: Justice Thomas. There's seven other justices and it only takes
Speaker 3: five of them to make an order. They can adopt
Speaker 3: an ethics code, they can adopt rules for accusal, and
Speaker 3: it does not have to be unanimous. Many orders of
Speaker 3: the Court, of course, are not unanimous. So the other
Speaker 3: seven need to step up if they want the public
Speaker 3: to respect the court and if they want the Court
Speaker 3: to do its business in a way that's worthy of
Speaker 3: the public's company.
Speaker 1: Durbin said, why do these justices continue to take a
Speaker 1: wrecking ball to the reputation of the highest court in
Speaker 1: the land. It seems like a three prong problem. You
Speaker 1: have the court's ethics controversies, You have the limited transparency
Speaker 1: at the court, and then you have also these far
Speaker 1: reaching rulings that bring the public's attention to the court
Speaker 1: and its power.
Speaker 3: Yes, and that's the combination. Now, there's a majority of
Speaker 3: the Court that is very conservative, and even on a
Speaker 3: case that neither Justice Thomas nor Justice Alito were participating
Speaker 3: in there would still be a conservative majority on the Court.
Speaker 3: The question is why do they insist on proceeding in
Speaker 3: a way that is at once there in bold and
Speaker 3: at the same time raises serious ethical questions, And that's
Speaker 3: very hard to understand. And then why the other justices
Speaker 3: don't seem to see this is the problem worth addressing
Speaker 3: is also hard to understand.
Speaker 1: What do you make of these defiant attitudes from Thomas
Speaker 1: and Alito?
Speaker 3: Well, I think Justice Thomas came on to the Court
Speaker 3: with a sense that much of the world was already
Speaker 3: against him. His confirmation went through by the barest of
Speaker 3: margins and has been fairly dismissive of public opinion since then.
Speaker 3: Justice Alito's rise so the Court was far less controversial,
Speaker 3: so it's harder to come up with a personal explanation
Speaker 3: of his definant attitude on these ethics issues.
Speaker 1: Justice Kavanaugh did say that the Supreme Court is going
Speaker 1: to be taking action soon to address ethics concerns. Do
Speaker 1: you think that means that they're going to come out
Speaker 1: with an ethics code or it could be anything.
Speaker 3: It could be anything. It was a very vague statement
Speaker 3: and hard to know. I hope that he's right. I
Speaker 3: hope they do come out with an ethics code worthy
Speaker 3: of the name. I strongly suspect even what both Justice
Speaker 3: Leader and Justice Thomas have indicated that they won't be
Speaker 3: able to come up with a strong ethics code that
Speaker 3: gets the unanimous support of the Court. But they don't
Speaker 3: need it, and they shouldn't hold off for it.
Speaker 1: We spoke before about Alito in his view that Congress
Speaker 1: had no authority to impose an ethics code on the justices,
Speaker 1: and then Justice Elena Kagan told an audience of judges
Speaker 1: and lawyers attending the Ninth Circuit can Congress do various
Speaker 1: things to regulate the Supreme Court? I think the answer
Speaker 1: is yes, and that it just can't be that the
Speaker 1: Court is the only institution that somehow is not subject
Speaker 1: to checks and balances from anybody else. We're not imperial.
Speaker 1: So obviously there's a break between at least Justice Kagan
Speaker 1: and Justice Alito on this, and I suspect other justices
Speaker 1: as well.
Speaker 3: It would seem. I mean, that's a matter of simple
Speaker 3: reading of the Constitution that is absolutely plain. The Court's
Speaker 3: jurisdiction on most matters is subject to Congress's choice, and
Speaker 3: Congress can serve condition that jurisdiction in any way that
Speaker 3: doesn't dictate outcomes to particular cases. So she's certainly right
Speaker 3: about that. That statement suggests that she strongly disagrees with
Speaker 3: Justice Alito about Congress's power. I hope she also disagrees
Speaker 3: with him about the desirability of forcing Congress to act.
Speaker 3: I hope there are four other justices that share feelings.
Speaker 1: You talked about the various things that could be done
Speaker 1: by the Supreme Court justices. But do you think that
Speaker 1: anything will really be done in the end about either
Speaker 1: Justice Alito or Justice Thomas by the Court itself.
Speaker 3: I don't think they'll take action directly against them. That's
Speaker 3: not how I close system like the Supreme Court typically works.
Speaker 3: But I think they might very well establish a code
Speaker 3: of ethics going forward. It won't deal with all the
Speaker 3: problems we've had. It won't deal with how much, particularly
Speaker 3: these two justices have committed themselves to a narrow set
Speaker 3: of right wing billionaires, but it can limit what happens
Speaker 3: going forward and hopefully keep this sort of thing from snowballing,
Speaker 3: as it obviously has with these two justices.
Speaker 1: And the new term begins in less than three weeks,
Speaker 1: so we shall see. Thanks so much, David. That's Professor
Speaker 1: David super of Georgetown Law School. The Fifth Circuit Court
Speaker 1: of Appeals has concluded that the Biden White House, the
Speaker 1: Surgeon General, the CDC, and the FBI likely violated the
Speaker 1: First Amendment by coercing social media platforms to take down
Speaker 1: posts on their sites at times with intimidating messages and
Speaker 1: threats of adverse action. The White House has said that
Speaker 1: it just pushed social media companies to adhere to their
Speaker 1: own rules about content.
Speaker 4: We have promoted responsible actions to protect public health, safety,
Speaker 4: and security when confronted by challenges like a deadly pandemic
Speaker 4: and foreign attacks on our elections, and we have consistently
Speaker 4: made clear that we believe social media companies have a
Speaker 4: critical responsibility to take account of the effects of their
Speaker 4: platforms that they have on the American people while making
Speaker 4: independent decisions about the content of their platforms.
Speaker 1: It's a ruling with consequences for the government's ability to
Speaker 1: combat false information about voting rights, COVID and other issues
Speaker 1: spread on social media. The appellate court did significantly whittle
Speaker 1: down a federal judges order that effectively blocked multiple government
Speaker 1: agencies from contacting platforms such as Facebook and x formerly
Speaker 1: Twitter to urge that content be taken down. My guest
Speaker 1: is Professor Eric Goleman of Santa Clara University's School of Law.
Speaker 1: He co directs the law school's High Tech Law Institute. Eric,
Speaker 1: what was the main issue here?
Speaker 5: The basic question is when were conversations that were taking
Speaker 5: place between the government and social media services becoming so
Speaker 5: coursive or so directed that the social media services were
Speaker 5: doing the government's bidding and removing content of their direction.
Speaker 1: Did the Fifth Circuit find that there were actual threats
Speaker 1: made to social media companies?
Speaker 5: It did, But the threats are always a little bit vague.
Speaker 5: It's not always as easy as you must do X
Speaker 5: or we will throw you in jail. The threats are
Speaker 5: often more indirect, and that's one of the many challenges
Speaker 5: from this opinion. It wasn't entirely clear to me exactly
Speaker 5: which threats mattered were when they even became threats, and.
Speaker 1: Did the court specify which agencies or departments were subject
Speaker 1: to this injunction?
Speaker 5: They did, but the actual implementation of the injunction is
Speaker 5: no more clear than before. The opinion what the Court
Speaker 5: said is that certain branch of the government, specifically they
Speaker 5: called out the White House and the FBI must comply
Speaker 5: with the rules articulated in the court. But the Court
Speaker 5: didn't provide concrete boundaries around those rules. It simply said,
Speaker 5: you must comply with the Constitution. So, in a sense,
Speaker 5: I don't know how the executive branches are going to
Speaker 5: implement what the court's ordering them to do, because it's
Speaker 5: saying comply with the constitution. But obviously the people who
Speaker 5: made the decision in the first place weren't clear what
Speaker 5: was constitutional what wasn't, and I don't know they're in
Speaker 5: clearer now.
Speaker 1: It also says they can't significantly encourage platforms to remove
Speaker 1: lawful content. So what does significantly encourage mean exactly?
Speaker 5: That's the point is that the significant encouragement is the
Speaker 5: boundary around the constitutional protections. In other words, if they're
Speaker 5: significantly encouraging the removal of constitutional content, that's not constitutional,
Speaker 5: that's a violation of the First Amendment. However, what constitutes
Speaker 5: this significant encouragement is not made clear by the opinion.
Speaker 5: They do point to a few examples, but I don't
Speaker 5: think I would know how to actually interpret that language
Speaker 5: the next time it came up. And so what's likely
Speaker 5: to happen is that if this opinion stands, I think
Speaker 5: that the regulated anties are going to become far less
Speaker 5: conversational with the social media services. They're not going to
Speaker 5: take a chance about violating the rule. And so the
Speaker 5: court standard actually clears out a lot of permitted behavior today.
Speaker 5: Because the boundary is so unclear, people are going to
Speaker 5: err on the side of being cautious.
Speaker 1: Well that's what the Republicans who brought this case want,
Speaker 1: isn't it. The Missouri ag Andrew Bailey said that the
Speaker 1: ruling was another brick in the wall of separation between
Speaker 1: tech and state.
Speaker 5: No doubt, there are many people who wish that the
Speaker 5: government would not be in conversations with social media services,
Speaker 5: and yet the Court's opinion really casts a shadow over
Speaker 5: dialogues that take place every day, all the time throughout
Speaker 5: our entire country between governments and private entities, not just
Speaker 5: social media services. This concern about significant encouragement or coercion
Speaker 5: comes up across the board in lots of spaces, and
Speaker 5: the Quirt standard puts potentially many or all of those
Speaker 5: in play, opens up the door for lots of people
Speaker 5: to challenge government conversations that are just in the public
Speaker 5: health and safety interest. Them's just trying to do its
Speaker 5: job to protected citizens, and now this court casts a
Speaker 5: doubt on the legitimacy of those efforts.
Speaker 1: The Biden administration had said that it was pushing social
Speaker 1: media companies to just adhere to their own rules about content.
Speaker 1: Did you see a First Amendment violation here?
Speaker 5: There's no doubt that some individual employees of the government
Speaker 5: push the frontiers, perhaps to or over the limit. That's
Speaker 5: just the nature of individual government employees so zealously trying
Speaker 5: to do their job. They might get a little bit excited.
Speaker 5: Having said that, I think that overall a number of
Speaker 5: the social media services appreciate the feedback from the government.
Speaker 5: They want to hear from the government because the government
Speaker 5: sees things that they don't or is a good neutral
Speaker 5: source of assessing risks in the community that need to
Speaker 5: be addressed, and so it's helpful for the social media
Speaker 5: services to hear from the government the risk that the
Speaker 5: government is assessing what might be done to address those risks.
Speaker 5: That's actually helpful and that informs the social media service's
Speaker 5: own independent At a turtle discretion So the line between that
Speaker 5: kind of activity and the over zealous pushing by some
Speaker 5: government employees is really sin and we want fewer of
Speaker 5: the Overzella's stuff, but we definitely want the other stuff
Speaker 5: to continue. And that's the part that I don't think
Speaker 5: the government eployees are going to know where they are
Speaker 5: on that spectrum.
Speaker 1: So do you think this will inhibit, you know, the
Speaker 1: federal government from communicating with the public about like key
Speaker 1: public health issues or the twenty twenty four election.
Speaker 5: I don't think it's likely to discourage the government from
Speaker 5: continue to communicate to the public, but it will definitely
Speaker 5: discourage some of the conversations that were taking place directly
Speaker 5: with social media services about those same issues, educating in
Speaker 5: social media services about the kinds of harms that occurring
Speaker 5: in the election sphere or in the public health sphere
Speaker 5: with things like COVID. The government was calling attention in
Speaker 5: particular problems that the government was trying to address in
Speaker 5: its public facing efforts. It also wanted the social media
Speaker 5: services to know about those efforts and potentially choose to
Speaker 5: interview on the government's behalf as well. And it's that
Speaker 5: latter piece that I think is less likely to happen,
Speaker 5: and social media services therefore may feel less likely to
Speaker 5: even consider what the government's saying given the ruling in
Speaker 5: this case, With this.
Speaker 1: Decision by the Fifth Circuit, are there any agencies or
Speaker 1: people who can't talk to the social media companies because
Speaker 1: of this ruling?
Speaker 5: No, all the government agencies are still allowed to talk
Speaker 5: with the social media services, but they're not allowed to
Speaker 5: coerce or significantly encourage the removal of constitutionally protected material.
Speaker 5: And yet that legal standard doesn't actually answer the question
Speaker 5: about which of those conversations are permissible. So even though
Speaker 5: conversations will still take place, they're going to be constrained,
Speaker 5: they're going to be chilled, they're going to be restricted
Speaker 5: because of the fact that the boundary is unclear.
Speaker 1: I thought it was interesting that doctor Anthony Fauci, who
Speaker 1: came under such criticism from conservatives during COVID, you know,
Speaker 1: the Fifth Circuit said, no, he did, Okay, he was fine.
Speaker 5: Yeah, you know, I think the Fifth Circuit was trying
Speaker 5: not to engage in partisan politics. So Fauci was, you know,
Speaker 5: the targeted conservative ayre, and so they weren't pandering to
Speaker 5: that ire. And yet the entire structure of the opinion
Speaker 5: really does validate a lot of the conservative objectives in
Speaker 5: a way that I think fundamentally in their minds, part
Speaker 5: of the health and safety So it's kind of like,
Speaker 5: what do we really want from the government? And I
Speaker 5: don't know that I share the Fifth Circuit's vision of
Speaker 5: what it wants from the government.
Speaker 1: I always point out that the Fifth Circuit is considered
Speaker 1: the most conservative appellate court in the country, and we've
Speaker 1: seen these judges make rulings that were outliers before, and
Speaker 1: it's getting reversed by the Supreme Court more than it
Speaker 1: used to.
Speaker 5: Well, the good news is that this particular opinion fixed
Speaker 5: an even worse District Court opinion that was a true outlier,
Speaker 5: and even that opinion was too much for the Fifth Circuit.
Speaker 5: They could not stand behind this opinion that had just
Speaker 5: gone rogue on the rule of law. So in that sense,
Speaker 5: the Fifth circu opinion is definitely better than the District
Speaker 5: Court opinion that preceded it. And yet I don't know
Speaker 5: what would happen if the Fifth Circuit opinion has appealed
Speaker 5: to the Supreme Court.
Speaker 1: Tell us about Judge Doddy's order.
Speaker 5: There's just a few things to say about it. Really,
Speaker 5: Judge Douty has been a go to judge for the Conservatives,
Speaker 5: hoping to basically find a way to make a venue
Speaker 5: selection that gives them the best odds of success in court.
Speaker 5: And in this particular case, he issued an opinion on
Speaker 5: July fourth, which is a federal holiday. The federal courts
Speaker 5: are closed on July fourth, but he deliberately issued the
Speaker 5: opinion on July fourth, as I think his way of
Speaker 5: saying that he was celebrating the independence that we obtained
Speaker 5: from the British by dropping one hundred and fifty page
Speaker 5: opinion that just completely disregarded the present about when government
Speaker 5: dialogues with it actors becomes an unconstitutional conversation. And as
Speaker 5: I said, it was so far beyond what even the
Speaker 5: Fifth Circuit to could tolerate. The Fifth Circuit overturned the
Speaker 5: vast majority of what he had to say. And it's
Speaker 5: just a sign that, you know, conservative plaintiffs are looking
Speaker 5: to increase their odds of getting favorable of rulings by
Speaker 5: picking judges like Judge Dowdy and finding ways to basically
Speaker 5: activate him to advance their agenda. It really was, I
Speaker 5: think a terrible display of our judicial system that he
Speaker 5: was issued this opinion that was so far unsupported by
Speaker 5: the rule of law, and dropping the opinion on the
Speaker 5: fourth of July as a statement that just I thought
Speaker 5: was really not cool.
Speaker 1: I didn't know it was on the fourth of July.
Speaker 5: I guess I took that day off, as said everyone else,
Speaker 5: And so you know, most people were like, really dropping
Speaker 5: one hundred and fifty page opinion on central holiday. It
Speaker 5: was like completely disrespectful to the hundreds of thousands of
Speaker 5: people who were going to be affected by this opinion,
Speaker 5: who all had to take their holiday to go read it.
Speaker 5: It was just not cool, and the Fifth Circuit couldn't
Speaker 5: abide by it.
Speaker 1: Now, Republicans in this case and in the House have
Speaker 1: accused government officials, as you referred to, of actively colluding
Speaker 1: with the platforms to influence public conversation. Is this their
Speaker 1: biggest victory so far?
Speaker 5: It's definitely validating of some of their concerns. And I
Speaker 5: think that anyone who reads the fact statement of the
Speaker 5: case and sees the insistent messages from the government will
Speaker 5: feel a little troubled by them. You know, there's definitely
Speaker 5: some fire under the smoke about whether or not government
Speaker 5: officials went too far I saw in the shouble by
Speaker 5: seeing some of the evidence produced in this case. Yet,
Speaker 5: the bigger question is what do we want the government
Speaker 5: to do differently, and how do we articulate the guidance
Speaker 5: to them to get them to do the job we
Speaker 5: want and to still take advantage of act. So the
Speaker 5: private sector plays a key role in advan saying public
Speaker 5: health and safety, and so in that sense, it makes
Speaker 5: me question what the people who champion the concerns about
Speaker 5: government overreach actually really want. Do they want less government
Speaker 5: at a risk or cost of public health and safety?
Speaker 5: Do they just hate the government when their team is
Speaker 5: not the one running it, or do they think that
Speaker 5: there's going to be some way to navigate this extremely
Speaker 5: fine line that's going to allow them to only get
Speaker 5: the good government intervention and screen out all the bad.
Speaker 5: And that ladder hope I think is just not supportable.
Speaker 5: I do want to add one other thing. Almost everything
Speaker 5: that the Biden administration was accused of in the case
Speaker 5: where the facts were showing what it was doing to
Speaker 5: converse with the social media services, the Trump administration was
Speaker 5: doing equally bad or worse things. That just was not
Speaker 5: an issue in this opinion, but it was absolutely the case,
Speaker 5: and state governments, including those that are led by Republicans,
Speaker 5: are doing equally bad or worse things as well. It's
Speaker 5: not really a problem with the Biden ministry. It's a
Speaker 5: problem with the government and what we want from the government,
Speaker 5: and so to think that this is a Biden administration
Speaker 5: problem is really a misunderstanding the problem.
Speaker 1: Eric, do you think the Justice Department should appeal this
Speaker 1: to the Supreme Court.
Speaker 5: I think it has to appeal the case to the
Speaker 5: Supreme Court because the opinion, although it's narrowed the injunction
Speaker 5: quite a bit, it still leaves a core injunction against
Speaker 5: key executive branch agencies, restricting their ability to do their
Speaker 5: job and leaving such ambiguity about how they can do
Speaker 5: their job that it seems like they need the Supreme
Speaker 5: Court to give the government more guidance. It wouldn't surprise
Speaker 5: me if the states that are the plaintiffs in this
Speaker 5: case also appeal the ruling because they want to pick
Speaker 5: up the stuff they had gotten in the district court
Speaker 5: that the Fifth Circuit took away. So it's entirely possible
Speaker 5: both sides will be encouraging the Supreme Court to take
Speaker 5: this case.
Speaker 1: And just explain the cases that they're considering involving Florida
Speaker 1: and Texas laws that would restrict the editorial discretion of
Speaker 1: social media platforms.
Speaker 5: Yeah. So, in twenty twenty one, both Florida and Texas
Speaker 5: passed laws called social media censorship laws, and these laws
Speaker 5: give a significant amount of instruction to social media services
Speaker 5: about how to run their editorial functions. Among other things,
Speaker 5: it says that if the social media services publish policies,
Speaker 5: they must adhere to the policies. And both laws say
Speaker 5: that there are certain types of editoral decisions that the
Speaker 5: services cannot make. For example, in the Texas law, it
Speaker 5: says that the services cannot engage in viewpoint discrimination when
Speaker 5: they engage in their editorial functions. I don't know what
Speaker 5: that means. I don't understand that terminology. But the point
Speaker 5: is that the Texas legislature specified and told the social
Speaker 5: media services how to run their business. Now, that's exactly
Speaker 5: what the circuit says in this opinion that the government
Speaker 5: could not do. The government could not tell the social
Speaker 5: media services that they had to publish certain items or
Speaker 5: had to remove certain items. Yet the Texas law did
Speaker 5: exactly that. And the worst part is the Fifth Circuit
Speaker 5: upheld that law, saying that was a constitutional intervention in
Speaker 5: the editorial discretion of the social media services to decide
Speaker 5: what content with search or their audience. I cannot reconcile
Speaker 5: those two opinions. The opinions that the Court issued most recently,
Speaker 5: saying that the executive branch had engaged in sensorial instructions
Speaker 5: to social media services is almost indistinguishable from what the
Speaker 5: Texas law did to order sensorial interventions into social media
Speaker 5: services at a total discression, and yet the Fifth Circuit
Speaker 5: reached inconsistent results.
Speaker 1: Supreme Court has asked the Biden administration for an opinion,
Speaker 1: and the Biden administration urged the Supreme Court to strike
Speaker 1: down key parts of the Florida and Texas laws since
Speaker 1: the measures have divided the federal appellate courts, and it
Speaker 1: seemed like the Supreme Court has to almost take that case.
Speaker 1: What are they really dolling about?
Speaker 5: To be fair, I don't know why the Supreme Court
Speaker 5: has not yet granted review in the Texas and Florida
Speaker 5: social media censorship cases. Those cases grais essential questions about
Speaker 5: the future of Internet regulation and if the Supreme Court
Speaker 5: doesn't take these cases now, they're just going to get
Speaker 5: dozens more cases coming at them raising the exact same issues.
Speaker 5: So to me, it seems like they have to take
Speaker 5: those cases, they have to get more guidance, and ideally
Speaker 5: they're going to clip the wings of both the executive
Speaker 5: branch decision makers and the state legislatures that are right
Speaker 5: now having their way with social media services telling them
Speaker 5: what to do when they shouldn't be.
Speaker 1: Always a pleasure to have you on the show, Eric,
Speaker 1: thanks so much. That's Professor Eric goldban Co, director of
Speaker 1: the High Tech Law Institute at the Santa Clara University
Speaker 1: School of Law. And that's it for this edition of
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