WEBVTT - Justice Samuel Alito Refuses to Recuse 0:00:03.200 --> 0:00:08.000 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:09.039 --> 0:00:13.120 At a judicial conference in August aired on CSPAN, Justice 0:00:13.160 --> 0:00:17.120 Elena Kagan said that the Supreme Court, like every branch 0:00:17.160 --> 0:00:20.000 of government, is subject to checks and balances. 0:00:20.400 --> 0:00:22.880 It just can't be that the Court is the only 0:00:23.000 --> 0:00:26.759 institution that somehow is not subject to any checks and 0:00:26.880 --> 0:00:31.200 balances from anybody else. I mean, we're not imperial, and 0:00:31.680 --> 0:00:34.280 we too are a part of a checking and balancing 0:00:34.320 --> 0:00:39.280 system in various ways. So can Congress do various things 0:00:39.320 --> 0:00:42.960 to regulate the Supreme Court? I think the answer is yes. 0:00:43.760 --> 0:00:47.479 That may not seem like a particularly surprising opinion, but 0:00:47.640 --> 0:00:51.800 it is diametrically opposed to what her colleague, Justice Samuel 0:00:51.800 --> 0:00:54.960 Alito said in a July interview at The Wall Street 0:00:55.040 --> 0:00:58.840 Journal's opinion section. That interview has now led to calls 0:00:58.880 --> 0:01:01.880 for a leader to requete himself in a major tax 0:01:01.960 --> 0:01:04.600 case coming before the court, not because of what he 0:01:04.720 --> 0:01:07.800 said in the interview, but because one of the writers 0:01:08.080 --> 0:01:11.560 is a lawyer involved in that case. Despite calls from 0:01:11.640 --> 0:01:16.240 Democratic senators, Alito has refused to recuse himself, saying there's 0:01:16.319 --> 0:01:19.400 no valid reason for him not to participate in the 0:01:19.440 --> 0:01:23.040 case joining me is constitutional law expert David Souper, a 0:01:23.080 --> 0:01:26.200 professor at Georgetown Law School, tell us a little more 0:01:26.200 --> 0:01:29.560 about the background of this recusal dispute. 0:01:29.760 --> 0:01:34.360 Certainly, Justice Leto perceived correctly that he was under considerable 0:01:34.360 --> 0:01:39.560 criticism in the media and responded in a number of ways, 0:01:39.760 --> 0:01:44.000 partly by writing an op ed defending himself, and partly 0:01:44.040 --> 0:01:49.280 by giving two interviews to a lawyer who was interviewing 0:01:49.360 --> 0:01:53.080 him for the Wall Street Journal. That lawyer is now 0:01:53.480 --> 0:01:58.840 one of the lawyers behind an effort to have large 0:01:58.920 --> 0:02:03.440 chunks of our text declared unconstitutional, that is in front 0:02:03.440 --> 0:02:06.960 of the court. Several people, including a number of Senators, 0:02:06.960 --> 0:02:11.840 have suggested that Justice Alto should refuse himself because of 0:02:12.240 --> 0:02:15.840 the ties to the lawyer who twice interviewed him, and 0:02:16.080 --> 0:02:18.320 Justice Alito has said he will do no such things. 0:02:18.639 --> 0:02:22.160 A group of Democrats, led by Senatjudiciary Chair Dick Durbin, 0:02:22.280 --> 0:02:25.480 call for his recusal in a letter to the Chief Justice, 0:02:25.639 --> 0:02:29.760 and Alito attached his statement in response to a Supreme 0:02:29.800 --> 0:02:33.040 Court orders list, and if you look at it quickly, 0:02:33.320 --> 0:02:36.519 it looks like a decision of the court, complete with footnotes. 0:02:37.040 --> 0:02:40.320 How unusual is it on a scale of. 0:02:40.320 --> 0:02:44.000 One to ten, pretty close to a ten. I think 0:02:44.040 --> 0:02:46.840 you can get to a ten if you combine the 0:02:46.880 --> 0:02:50.799 fact that the very unusual form and that the content 0:02:50.919 --> 0:02:52.760 is also extremely strange. 0:02:53.040 --> 0:02:56.000 He said that there was nothing out of the ordinary 0:02:56.160 --> 0:03:00.000 about the interviews in question, and then he refers to 0:03:00.080 --> 0:03:03.720 to in footnotes interviews that various justices have done with 0:03:03.840 --> 0:03:07.160 members of the media and says, well, they didn't recuse 0:03:07.200 --> 0:03:12.079 themselves when cases involving those media entities came before the court. 0:03:12.120 --> 0:03:14.480 But I don't know of any case where the journalists 0:03:14.880 --> 0:03:16.840 then came before the court. 0:03:17.120 --> 0:03:22.560 I don't either. It's also pretty unusual because Justice Alito 0:03:22.760 --> 0:03:30.120 himself described this PR campaign as his self defense. Judges 0:03:30.280 --> 0:03:33.720 talked to journalists to educate the public about the law. 0:03:33.840 --> 0:03:37.720 All the time, they speak to junior high school civics classes. 0:03:38.160 --> 0:03:42.120 That's all fine, but he said that no one was 0:03:42.160 --> 0:03:45.680 defending him, so he would have to defend himself and 0:03:45.800 --> 0:03:50.880 launched this PR campaign. The lawyer in this case helped 0:03:50.920 --> 0:03:53.880 him with his PR campaign. Something that people in this 0:03:54.040 --> 0:03:57.200 town pay tens and hundreds of thousands of dollars for 0:03:57.640 --> 0:04:00.920 was given to him free. And then the lawyer who 0:04:00.960 --> 0:04:05.640 did this enormous favor to him is arguing a case 0:04:05.680 --> 0:04:09.200 in front of the court that's unprecedented to my knowledge. 0:04:09.920 --> 0:04:13.920 There's also the fact that when the first article was 0:04:13.960 --> 0:04:17.640 published in April, the justices hadn't yet agreed to hear 0:04:17.680 --> 0:04:19.880 the case. They agreed in June, and then the second 0:04:19.960 --> 0:04:23.839 article was published in July. So the timing alone gives 0:04:23.880 --> 0:04:25.279 the appearance of impropriety. 0:04:25.720 --> 0:04:29.479 Well, any participation, whether it's in considering whether to take 0:04:29.560 --> 0:04:33.680 the case or in deciding it is improper if you 0:04:33.800 --> 0:04:36.440 have a conflict of interest, and when someone has just 0:04:36.520 --> 0:04:40.440 provided you services which, by your own admission, you felt 0:04:40.480 --> 0:04:44.719 you badly needed, and those services have enormous value. That's 0:04:44.760 --> 0:04:47.880 precisely why we have conflict of interest law. There's nothing 0:04:47.920 --> 0:04:51.400 wrong with his getting these services. He just shouldn't participate 0:04:51.440 --> 0:04:54.120 in a case that is being litigated by the person 0:04:54.160 --> 0:04:55.000 who provided them. 0:04:55.360 --> 0:04:59.200 Something he said is something that I think Justice Thomas 0:04:59.240 --> 0:05:02.760 has said, which to me, this is the point about ethics. 0:05:02.760 --> 0:05:06.960 He said that the lawyer Rifkin participated in the interviews 0:05:07.000 --> 0:05:09.719 as a journalist, not an advocate, and that they didn't 0:05:09.720 --> 0:05:14.120 discuss the tax case, either directly or indirectly. Well, I mean, 0:05:14.160 --> 0:05:16.800 that's not the point is it whether they discuss the case. 0:05:17.560 --> 0:05:20.000 Well, that's certainly not the point. I mean, if a 0:05:20.120 --> 0:05:25.800 lawyer in the case had given a car or a 0:05:25.920 --> 0:05:30.840 house to a Supreme Court justice while not discussing the 0:05:30.880 --> 0:05:34.840 case they were litigating, that justice should still refuse themselves 0:05:34.839 --> 0:05:38.360 from the case that that lawyer was arguing, because they 0:05:38.560 --> 0:05:41.960 obviously owe the lawyer or something and will have a 0:05:42.000 --> 0:05:43.240 temptation to repay it. 0:05:43.640 --> 0:05:48.200 Judiciary Chairman Dick Durbin's response was quote Justice Alito, of 0:05:48.240 --> 0:05:51.200 the originalist school of thinking that empty seats on an 0:05:51.240 --> 0:05:54.960 airplane don't count as gifts, surprises no one by sitting 0:05:54.960 --> 0:05:57.440 on a case involving a lawyer who honored him with 0:05:57.480 --> 0:06:00.960 a puff piece in the Wall Street Journal at referring 0:06:01.000 --> 0:06:03.479 to the two thousand and eight private flight on a 0:06:03.560 --> 0:06:07.080 jet charted by a billionaire whose hedge fund was linked 0:06:07.120 --> 0:06:10.840 to several disputes before the court. That was pretty sarcastic, 0:06:10.960 --> 0:06:13.719 but made the point that, I mean, there are just 0:06:13.760 --> 0:06:16.560 a string of these ethical lapses. 0:06:17.600 --> 0:06:22.040 Yes. This one, though, is really more striking, because Justice 0:06:22.200 --> 0:06:29.279 Alito is saying that he should be able to rise 0:06:29.400 --> 0:06:34.719 above his debt that he owes this lawyer and decide 0:06:34.760 --> 0:06:38.920 the case fairly, which shows a fundamental misunderstanding of conflict 0:06:39.000 --> 0:06:41.480 of interest law. The whole point of conflicts of interest 0:06:41.560 --> 0:06:44.279 law is that we don't want to ask people to 0:06:44.400 --> 0:06:47.159 rise above their conflicts, and we don't want to ask 0:06:47.200 --> 0:06:50.040 the public to trust that that has happened. Instead, we 0:06:50.120 --> 0:06:54.000 eliminate the conflicts by having people who are conflicted not 0:06:54.440 --> 0:06:58.680 involved in cases and with judges. The goal is to 0:06:58.760 --> 0:07:00.800 avoid the appearance of propriety. 0:07:01.680 --> 0:07:04.720 In this case, maybe Alito is putting all the information 0:07:04.839 --> 0:07:07.520 out there and saying, let the public decide whether I'm 0:07:07.600 --> 0:07:08.240 right or wrong. 0:07:09.080 --> 0:07:11.800 I mean, that might be grounds for the public to 0:07:11.880 --> 0:07:14.600 vote against his reelection, but of course he isn't subject 0:07:14.680 --> 0:07:18.320 to re election. The point is not whether the public 0:07:18.840 --> 0:07:22.440 believes well of him or not. The point is to 0:07:22.480 --> 0:07:26.200 get an impartial decision on the cases in front of 0:07:26.240 --> 0:07:29.040 the court. And having a judge decide a case is 0:07:29.080 --> 0:07:33.720 being pursued by a lawyer who helped him out when 0:07:33.760 --> 0:07:38.280 he said he needed pr assistance makes it impossible to 0:07:38.320 --> 0:07:42.600 know whether that case is influenced by the debt he 0:07:42.720 --> 0:07:43.680 owed that lawyer. 0:07:44.000 --> 0:07:49.320 The Judiciary chair wrote to Chief Justice Roberts. Can Roberts 0:07:49.400 --> 0:07:52.440 do anything when Alito says Nope, I'm not going to 0:07:52.520 --> 0:07:53.400 recuse myself. 0:07:53.840 --> 0:07:57.040 Yeah, the Chief Justice combined with the other Justice can 0:07:57.120 --> 0:07:59.920 do quite a great deal. Towards the end of Justice 0:08:00.000 --> 0:08:04.200 Douglas's service on the Court, the other justice concluded that 0:08:04.720 --> 0:08:10.720 he didn't have enough mental acuity to make responsible decisions, 0:08:10.720 --> 0:08:13.840 so they informally agreed that they would not decide any 0:08:13.880 --> 0:08:16.240 case in which his was the fifth vote. The other 0:08:16.520 --> 0:08:21.600 justices can similarly decide that they will not decide any 0:08:21.640 --> 0:08:25.920 case in which Justice Alitos is the fifth vote, or 0:08:26.000 --> 0:08:29.760 they could simply vote to reject this case because they 0:08:29.800 --> 0:08:34.640 can't hear it. In impartial circumstances, it's called dismissed as 0:08:34.679 --> 0:08:39.400 improvidently granted or dig. They can dig the case to 0:08:39.440 --> 0:08:42.040 prevent Justice Alito from participating in it. 0:08:42.600 --> 0:08:45.480 And Justice Clarence Thomas seems to be in a class 0:08:45.600 --> 0:08:50.120 all by himself as far as ethical controversies with luxury 0:08:50.200 --> 0:08:55.560 trips paid for by mega GOP donor Harlan Crow and 0:08:56.000 --> 0:09:00.480 real estate deals. Thomas just revealed that last year alone, 0:09:00.880 --> 0:09:04.800 he went on three trips on Crow's private plane, and 0:09:04.880 --> 0:09:08.360 yet Thomas shows no inclination to step down. 0:09:09.320 --> 0:09:12.720 If you take these gifts in the first place, and 0:09:13.040 --> 0:09:18.520 if you see yourself as responding to a fairly narrow 0:09:18.640 --> 0:09:22.120 segment of the legal community in the political environment, perhaps 0:09:22.200 --> 0:09:25.000 you don't care about the appearance you give to the 0:09:25.040 --> 0:09:28.440 broader public. But this goes way beyond Justice Alito or 0:09:28.600 --> 0:09:32.679 Justice Thomas. There's seven other justices and it only takes 0:09:32.679 --> 0:09:35.959 five of them to make an order. They can adopt 0:09:35.960 --> 0:09:39.680 an ethics code, they can adopt rules for accusal, and 0:09:40.800 --> 0:09:43.440 it does not have to be unanimous. Many orders of 0:09:43.440 --> 0:09:46.040 the Court, of course, are not unanimous. So the other 0:09:46.160 --> 0:09:49.959 seven need to step up if they want the public 0:09:50.000 --> 0:09:52.120 to respect the court and if they want the Court 0:09:52.160 --> 0:09:54.600 to do its business in a way that's worthy of 0:09:54.679 --> 0:09:55.680 the public's company. 0:09:56.200 --> 0:09:59.280 Durbin said, why do these justices continue to take a 0:09:59.320 --> 0:10:01.960 wrecking ball to the reputation of the highest court in 0:10:02.000 --> 0:10:05.600 the land. It seems like a three prong problem. You 0:10:05.679 --> 0:10:10.360 have the court's ethics controversies, You have the limited transparency 0:10:10.360 --> 0:10:12.720 at the court, and then you have also these far 0:10:12.800 --> 0:10:16.760 reaching rulings that bring the public's attention to the court 0:10:16.760 --> 0:10:17.480 and its power. 0:10:18.480 --> 0:10:22.360 Yes, and that's the combination. Now, there's a majority of 0:10:22.400 --> 0:10:25.200 the Court that is very conservative, and even on a 0:10:25.240 --> 0:10:29.400 case that neither Justice Thomas nor Justice Alito were participating 0:10:29.440 --> 0:10:32.400 in there would still be a conservative majority on the Court. 0:10:32.600 --> 0:10:37.080 The question is why do they insist on proceeding in 0:10:37.160 --> 0:10:40.000 a way that is at once there in bold and 0:10:40.080 --> 0:10:45.079 at the same time raises serious ethical questions, And that's 0:10:45.200 --> 0:10:48.840 very hard to understand. And then why the other justices 0:10:48.880 --> 0:10:51.240 don't seem to see this is the problem worth addressing 0:10:51.720 --> 0:10:53.079 is also hard to understand. 0:10:53.720 --> 0:10:58.079 What do you make of these defiant attitudes from Thomas 0:10:58.080 --> 0:10:58.960 and Alito? 0:10:59.520 --> 0:11:03.400 Well, I think Justice Thomas came on to the Court 0:11:04.120 --> 0:11:07.960 with a sense that much of the world was already 0:11:07.960 --> 0:11:11.080 against him. His confirmation went through by the barest of 0:11:11.160 --> 0:11:19.240 margins and has been fairly dismissive of public opinion since then. 0:11:19.640 --> 0:11:23.559 Justice Alito's rise so the Court was far less controversial, 0:11:23.679 --> 0:11:27.040 so it's harder to come up with a personal explanation 0:11:27.160 --> 0:11:29.600 of his definant attitude on these ethics issues. 0:11:30.440 --> 0:11:35.160 Justice Kavanaugh did say that the Supreme Court is going 0:11:35.200 --> 0:11:39.320 to be taking action soon to address ethics concerns. Do 0:11:39.360 --> 0:11:41.040 you think that means that they're going to come out 0:11:41.040 --> 0:11:43.040 with an ethics code or it could be anything. 0:11:43.880 --> 0:11:47.160 It could be anything. It was a very vague statement 0:11:47.320 --> 0:11:49.680 and hard to know. I hope that he's right. I 0:11:49.720 --> 0:11:52.400 hope they do come out with an ethics code worthy 0:11:52.440 --> 0:11:56.720 of the name. I strongly suspect even what both Justice 0:11:56.800 --> 0:12:00.440 Leader and Justice Thomas have indicated that they won't be 0:12:00.480 --> 0:12:02.760 able to come up with a strong ethics code that 0:12:02.880 --> 0:12:05.760 gets the unanimous support of the Court. But they don't 0:12:05.800 --> 0:12:07.400 need it, and they shouldn't hold off for it. 0:12:07.720 --> 0:12:11.880 We spoke before about Alito in his view that Congress 0:12:11.920 --> 0:12:15.360 had no authority to impose an ethics code on the justices, 0:12:15.880 --> 0:12:21.160 and then Justice Elena Kagan told an audience of judges 0:12:21.200 --> 0:12:25.280 and lawyers attending the Ninth Circuit can Congress do various 0:12:25.280 --> 0:12:28.160 things to regulate the Supreme Court? I think the answer 0:12:28.240 --> 0:12:30.560 is yes, and that it just can't be that the 0:12:30.600 --> 0:12:33.760 Court is the only institution that somehow is not subject 0:12:33.800 --> 0:12:37.600 to checks and balances from anybody else. We're not imperial. 0:12:38.240 --> 0:12:42.280 So obviously there's a break between at least Justice Kagan 0:12:42.360 --> 0:12:45.400 and Justice Alito on this, and I suspect other justices 0:12:45.400 --> 0:12:46.680 as well. 0:12:46.840 --> 0:12:49.520 It would seem. I mean, that's a matter of simple 0:12:49.559 --> 0:12:54.480 reading of the Constitution that is absolutely plain. The Court's 0:12:54.559 --> 0:12:58.920 jurisdiction on most matters is subject to Congress's choice, and 0:12:59.080 --> 0:13:03.200 Congress can serve condition that jurisdiction in any way that 0:13:03.280 --> 0:13:07.720 doesn't dictate outcomes to particular cases. So she's certainly right 0:13:07.800 --> 0:13:12.480 about that. That statement suggests that she strongly disagrees with 0:13:13.080 --> 0:13:16.760 Justice Alito about Congress's power. I hope she also disagrees 0:13:16.840 --> 0:13:20.240 with him about the desirability of forcing Congress to act. 0:13:20.559 --> 0:13:24.199 I hope there are four other justices that share feelings. 0:13:24.840 --> 0:13:27.360 You talked about the various things that could be done 0:13:27.760 --> 0:13:31.160 by the Supreme Court justices. But do you think that 0:13:31.360 --> 0:13:34.200 anything will really be done in the end about either 0:13:34.360 --> 0:13:37.280 Justice Alito or Justice Thomas by the Court itself. 0:13:37.640 --> 0:13:41.720 I don't think they'll take action directly against them. That's 0:13:41.920 --> 0:13:45.480 not how I close system like the Supreme Court typically works. 0:13:45.559 --> 0:13:48.760 But I think they might very well establish a code 0:13:48.760 --> 0:13:51.240 of ethics going forward. It won't deal with all the 0:13:51.280 --> 0:13:55.360 problems we've had. It won't deal with how much, particularly 0:13:55.400 --> 0:13:59.920 these two justices have committed themselves to a narrow set 0:13:59.920 --> 0:14:04.360 of right wing billionaires, but it can limit what happens 0:14:04.440 --> 0:14:09.160 going forward and hopefully keep this sort of thing from snowballing, 0:14:09.240 --> 0:14:11.960 as it obviously has with these two justices. 0:14:11.960 --> 0:14:14.760 And the new term begins in less than three weeks, 0:14:14.800 --> 0:14:18.120 so we shall see. Thanks so much, David. That's Professor 0:14:18.200 --> 0:14:23.000 David super of Georgetown Law School. The Fifth Circuit Court 0:14:23.000 --> 0:14:26.000 of Appeals has concluded that the Biden White House, the 0:14:26.040 --> 0:14:30.920 Surgeon General, the CDC, and the FBI likely violated the 0:14:30.960 --> 0:14:35.200 First Amendment by coercing social media platforms to take down 0:14:35.240 --> 0:14:39.680 posts on their sites at times with intimidating messages and 0:14:39.800 --> 0:14:43.280 threats of adverse action. The White House has said that 0:14:43.360 --> 0:14:46.480 it just pushed social media companies to adhere to their 0:14:46.520 --> 0:14:48.160 own rules about content. 0:14:49.080 --> 0:14:53.040 We have promoted responsible actions to protect public health, safety, 0:14:53.640 --> 0:14:57.480 and security when confronted by challenges like a deadly pandemic 0:14:57.520 --> 0:15:01.000 and foreign attacks on our elections, and we have consistently 0:15:01.040 --> 0:15:03.760 made clear that we believe social media companies have a 0:15:03.800 --> 0:15:08.000 critical responsibility to take account of the effects of their 0:15:08.040 --> 0:15:11.200 platforms that they have on the American people while making 0:15:11.200 --> 0:15:14.320 independent decisions about the content of their platforms. 0:15:14.520 --> 0:15:17.800 It's a ruling with consequences for the government's ability to 0:15:17.920 --> 0:15:22.880 combat false information about voting rights, COVID and other issues 0:15:22.920 --> 0:15:27.240 spread on social media. The appellate court did significantly whittle 0:15:27.320 --> 0:15:31.600 down a federal judges order that effectively blocked multiple government 0:15:31.640 --> 0:15:36.400 agencies from contacting platforms such as Facebook and x formerly 0:15:36.480 --> 0:15:40.680 Twitter to urge that content be taken down. My guest 0:15:40.800 --> 0:15:44.840 is Professor Eric Goleman of Santa Clara University's School of Law. 0:15:45.200 --> 0:15:49.400 He co directs the law school's High Tech Law Institute. Eric, 0:15:49.480 --> 0:15:51.120 what was the main issue here? 0:15:51.760 --> 0:15:55.880 The basic question is when were conversations that were taking 0:15:55.920 --> 0:15:59.880 place between the government and social media services becoming so 0:16:00.160 --> 0:16:05.280 coursive or so directed that the social media services were 0:16:05.320 --> 0:16:08.520 doing the government's bidding and removing content of their direction. 0:16:09.040 --> 0:16:12.680 Did the Fifth Circuit find that there were actual threats 0:16:13.000 --> 0:16:14.760 made to social media companies? 0:16:15.360 --> 0:16:20.280 It did, But the threats are always a little bit vague. 0:16:20.760 --> 0:16:24.360 It's not always as easy as you must do X 0:16:24.600 --> 0:16:27.680 or we will throw you in jail. The threats are 0:16:27.720 --> 0:16:31.920 often more indirect, and that's one of the many challenges 0:16:31.960 --> 0:16:35.520 from this opinion. It wasn't entirely clear to me exactly 0:16:36.120 --> 0:16:40.080 which threats mattered were when they even became threats, and. 0:16:40.040 --> 0:16:45.840 Did the court specify which agencies or departments were subject 0:16:45.840 --> 0:16:46.640 to this injunction? 0:16:47.440 --> 0:16:52.680 They did, but the actual implementation of the injunction is 0:16:53.000 --> 0:16:55.960 no more clear than before. The opinion what the Court 0:16:56.080 --> 0:16:59.280 said is that certain branch of the government, specifically they 0:16:59.320 --> 0:17:03.360 called out the White House and the FBI must comply 0:17:03.640 --> 0:17:07.760 with the rules articulated in the court. But the Court 0:17:07.880 --> 0:17:12.720 didn't provide concrete boundaries around those rules. It simply said, 0:17:12.840 --> 0:17:16.560 you must comply with the Constitution. So, in a sense, 0:17:16.720 --> 0:17:20.800 I don't know how the executive branches are going to 0:17:21.000 --> 0:17:24.400 implement what the court's ordering them to do, because it's 0:17:24.400 --> 0:17:27.200 saying comply with the constitution. But obviously the people who 0:17:27.359 --> 0:17:29.600 made the decision in the first place weren't clear what 0:17:29.720 --> 0:17:32.040 was constitutional what wasn't, and I don't know they're in 0:17:32.119 --> 0:17:32.760 clearer now. 0:17:33.320 --> 0:17:37.640 It also says they can't significantly encourage platforms to remove 0:17:37.760 --> 0:17:43.240 lawful content. So what does significantly encourage mean exactly? 0:17:43.320 --> 0:17:48.200 That's the point is that the significant encouragement is the 0:17:48.320 --> 0:17:52.560 boundary around the constitutional protections. In other words, if they're 0:17:52.600 --> 0:17:56.920 significantly encouraging the removal of constitutional content, that's not constitutional, 0:17:57.040 --> 0:18:01.120 that's a violation of the First Amendment. However, what constitutes 0:18:01.160 --> 0:18:05.400 this significant encouragement is not made clear by the opinion. 0:18:05.600 --> 0:18:08.720 They do point to a few examples, but I don't 0:18:08.800 --> 0:18:12.320 think I would know how to actually interpret that language 0:18:12.400 --> 0:18:15.520 the next time it came up. And so what's likely 0:18:15.600 --> 0:18:19.160 to happen is that if this opinion stands, I think 0:18:19.200 --> 0:18:23.240 that the regulated anties are going to become far less 0:18:23.400 --> 0:18:26.399 conversational with the social media services. They're not going to 0:18:26.440 --> 0:18:30.040 take a chance about violating the rule. And so the 0:18:30.160 --> 0:18:35.159 court standard actually clears out a lot of permitted behavior today. 0:18:35.160 --> 0:18:37.840 Because the boundary is so unclear, people are going to 0:18:37.960 --> 0:18:39.760 err on the side of being cautious. 0:18:40.160 --> 0:18:43.359 Well that's what the Republicans who brought this case want, 0:18:43.520 --> 0:18:47.480 isn't it. The Missouri ag Andrew Bailey said that the 0:18:47.600 --> 0:18:51.720 ruling was another brick in the wall of separation between 0:18:51.920 --> 0:18:52.879 tech and state. 0:18:53.240 --> 0:18:57.120 No doubt, there are many people who wish that the 0:18:57.160 --> 0:19:00.600 government would not be in conversations with social media services, 0:19:00.800 --> 0:19:04.879 and yet the Court's opinion really casts a shadow over 0:19:05.600 --> 0:19:09.399 dialogues that take place every day, all the time throughout 0:19:09.480 --> 0:19:15.080 our entire country between governments and private entities, not just 0:19:15.160 --> 0:19:20.240 social media services. This concern about significant encouragement or coercion 0:19:20.600 --> 0:19:24.240 comes up across the board in lots of spaces, and 0:19:24.520 --> 0:19:27.600 the Quirt standard puts potentially many or all of those 0:19:27.640 --> 0:19:31.119 in play, opens up the door for lots of people 0:19:31.160 --> 0:19:35.040 to challenge government conversations that are just in the public 0:19:35.080 --> 0:19:37.680 health and safety interest. Them's just trying to do its 0:19:37.760 --> 0:19:41.480 job to protected citizens, and now this court casts a 0:19:41.480 --> 0:19:43.359 doubt on the legitimacy of those efforts. 0:19:43.560 --> 0:19:46.840 The Biden administration had said that it was pushing social 0:19:46.880 --> 0:19:51.480 media companies to just adhere to their own rules about content. 0:19:52.400 --> 0:19:55.480 Did you see a First Amendment violation here? 0:19:56.680 --> 0:20:01.560 There's no doubt that some individual employees of the government 0:20:02.119 --> 0:20:07.280 push the frontiers, perhaps to or over the limit. That's 0:20:07.760 --> 0:20:11.360 just the nature of individual government employees so zealously trying 0:20:11.400 --> 0:20:14.480 to do their job. They might get a little bit excited. 0:20:14.880 --> 0:20:18.440 Having said that, I think that overall a number of 0:20:18.440 --> 0:20:21.720 the social media services appreciate the feedback from the government. 0:20:21.880 --> 0:20:24.199 They want to hear from the government because the government 0:20:24.560 --> 0:20:29.240 sees things that they don't or is a good neutral 0:20:29.400 --> 0:20:34.119 source of assessing risks in the community that need to 0:20:34.119 --> 0:20:36.920 be addressed, and so it's helpful for the social media 0:20:36.960 --> 0:20:39.679 services to hear from the government the risk that the 0:20:39.720 --> 0:20:43.240 government is assessing what might be done to address those risks. 0:20:43.440 --> 0:20:47.320 That's actually helpful and that informs the social media service's 0:20:47.400 --> 0:20:52.560 own independent At a turtle discretion So the line between that 0:20:52.680 --> 0:20:56.879 kind of activity and the over zealous pushing by some 0:20:57.359 --> 0:21:02.199 government employees is really sin and we want fewer of 0:21:02.240 --> 0:21:04.560 the Overzella's stuff, but we definitely want the other stuff 0:21:04.600 --> 0:21:06.960 to continue. And that's the part that I don't think 0:21:07.160 --> 0:21:09.840 the government eployees are going to know where they are 0:21:09.880 --> 0:21:10.880 on that spectrum. 0:21:11.440 --> 0:21:13.919 So do you think this will inhibit, you know, the 0:21:13.920 --> 0:21:17.960 federal government from communicating with the public about like key 0:21:18.040 --> 0:21:21.080 public health issues or the twenty twenty four election. 0:21:21.600 --> 0:21:25.160 I don't think it's likely to discourage the government from 0:21:25.200 --> 0:21:28.879 continue to communicate to the public, but it will definitely 0:21:28.960 --> 0:21:32.520 discourage some of the conversations that were taking place directly 0:21:32.520 --> 0:21:36.240 with social media services about those same issues, educating in 0:21:36.320 --> 0:21:39.280 social media services about the kinds of harms that occurring 0:21:39.640 --> 0:21:42.399 in the election sphere or in the public health sphere 0:21:42.400 --> 0:21:46.520 with things like COVID. The government was calling attention in 0:21:46.560 --> 0:21:49.600 particular problems that the government was trying to address in 0:21:49.640 --> 0:21:52.800 its public facing efforts. It also wanted the social media 0:21:52.840 --> 0:21:55.919 services to know about those efforts and potentially choose to 0:21:55.920 --> 0:21:59.000 interview on the government's behalf as well. And it's that 0:21:59.160 --> 0:22:01.560 latter piece that I think is less likely to happen, 0:22:01.960 --> 0:22:05.960 and social media services therefore may feel less likely to 0:22:06.040 --> 0:22:09.399 even consider what the government's saying given the ruling in 0:22:09.440 --> 0:22:10.480 this case, With this. 0:22:10.400 --> 0:22:13.440 Decision by the Fifth Circuit, are there any agencies or 0:22:13.520 --> 0:22:17.840 people who can't talk to the social media companies because 0:22:17.880 --> 0:22:18.879 of this ruling? 0:22:19.320 --> 0:22:22.040 No, all the government agencies are still allowed to talk 0:22:22.080 --> 0:22:25.119 with the social media services, but they're not allowed to 0:22:25.240 --> 0:22:30.360 coerce or significantly encourage the removal of constitutionally protected material. 0:22:30.560 --> 0:22:34.280 And yet that legal standard doesn't actually answer the question 0:22:34.320 --> 0:22:38.040 about which of those conversations are permissible. So even though 0:22:38.080 --> 0:22:41.760 conversations will still take place, they're going to be constrained, 0:22:41.800 --> 0:22:44.120 they're going to be chilled, they're going to be restricted 0:22:44.640 --> 0:22:46.879 because of the fact that the boundary is unclear. 0:22:47.320 --> 0:22:51.320 I thought it was interesting that doctor Anthony Fauci, who 0:22:51.359 --> 0:22:56.760 came under such criticism from conservatives during COVID, you know, 0:22:56.840 --> 0:22:59.919 the Fifth Circuit said, no, he did, Okay, he was fine. 0:23:00.800 --> 0:23:03.600 Yeah, you know, I think the Fifth Circuit was trying 0:23:03.680 --> 0:23:08.359 not to engage in partisan politics. So Fauci was, you know, 0:23:08.440 --> 0:23:11.960 the targeted conservative ayre, and so they weren't pandering to 0:23:12.080 --> 0:23:16.000 that ire. And yet the entire structure of the opinion 0:23:16.440 --> 0:23:19.760 really does validate a lot of the conservative objectives in 0:23:19.800 --> 0:23:22.000 a way that I think fundamentally in their minds, part 0:23:22.040 --> 0:23:24.359 of the health and safety So it's kind of like, 0:23:24.440 --> 0:23:26.679 what do we really want from the government? And I 0:23:26.720 --> 0:23:29.480 don't know that I share the Fifth Circuit's vision of 0:23:29.520 --> 0:23:30.760 what it wants from the government. 0:23:31.200 --> 0:23:34.680 I always point out that the Fifth Circuit is considered 0:23:34.720 --> 0:23:38.240 the most conservative appellate court in the country, and we've 0:23:38.240 --> 0:23:42.640 seen these judges make rulings that were outliers before, and 0:23:43.359 --> 0:23:46.200 it's getting reversed by the Supreme Court more than it 0:23:46.280 --> 0:23:46.600 used to. 0:23:46.840 --> 0:23:49.920 Well, the good news is that this particular opinion fixed 0:23:50.000 --> 0:23:53.520 an even worse District Court opinion that was a true outlier, 0:23:53.680 --> 0:23:57.800 and even that opinion was too much for the Fifth Circuit. 0:23:57.880 --> 0:24:00.679 They could not stand behind this opinion that had just 0:24:00.840 --> 0:24:04.840 gone rogue on the rule of law. So in that sense, 0:24:04.880 --> 0:24:07.720 the Fifth circu opinion is definitely better than the District 0:24:07.760 --> 0:24:10.760 Court opinion that preceded it. And yet I don't know 0:24:10.800 --> 0:24:13.000 what would happen if the Fifth Circuit opinion has appealed 0:24:13.000 --> 0:24:13.720 to the Supreme Court. 0:24:14.119 --> 0:24:15.880 Tell us about Judge Doddy's order. 0:24:16.600 --> 0:24:18.639 There's just a few things to say about it. Really, 0:24:18.800 --> 0:24:24.000 Judge Douty has been a go to judge for the Conservatives, 0:24:24.080 --> 0:24:28.360 hoping to basically find a way to make a venue 0:24:28.400 --> 0:24:31.560