Emergency Podcast: The Supreme Court’s Social Media Cases

Eugene Volokh: [00:00:00] Welcome to an emergency episode of the Free Speech Unmuted podcast. It's an emergency because there's a Supreme Court case this morning the Net Choice case or two combined cases having to do with the Texas and Florida social media. Laws. I am your co host, Eugene Volokh, with the Hoover Institution, and I'm here with your other co host, Jane Bambauer, from the University of Florida, and we're going to talk about net choice, and we're also going to talk briefly about the Murthy v.

Missouri case, also involving social media, but a different matter. Let's start with the net choice cases. The lead case is a Moody v. Net Choice. That's how it's going to be called in law school. In the books and this case involved the Texas and Florida laws, complicated laws, slightly different in some respects.

Let me oversimplify by describing them this way. The social the laws [00:01:00] provided the social media platforms generally can't block user material because of the user's viewpoints. Florida law was narrower in some respects, the laws are also broader in some respects, but basically that's what it was about.

The theory is that platforms shouldn't be able to moderate, or if you prefer, depending what side of the issue you're on probably, to censor material based on viewpoint. And the lower courts dealt with this as a as a question of over breadth, whether facially invalid because they were too broad.

And the Supreme Court said. Wait a minute that's not a good way of dealing with the laws at this stage because social media platforms do a lot of different things. They provide what the court called curated feeds like the Facebook newsfeed or the front page of YouTube, let's say. They also provide direct messaging where people can just chat with one another.

They also provide a hosting for people's own pages that that their friends could [00:02:00] visit if they want to. And the Supreme Court said that the First Amendment analysis might be quite different for each of these functions, and that before striking down the law on the grounds that it's overbroad because it's unconstitutional as applied to one of those functions, Lower courts have to do a lot more work to figure out if indeed most of the time it's unconstitutional, some of the time, a bit of the time, and the like.

This is part of the Supreme Court's broader retreat from the overbreadth doctrine and a shift to asking litigants to basically challenge the law as applied to their own speech, which is pretty much the way you challenge laws under other constitutional law. But in the process of this rendering this pretty procedural decision.

By the way all nine justices agreed that the case should be sent down to lower courts for further further determination as to how the First Amendment plays out with regard to all of these functions of the [00:03:00] social media platforms. In the process the majority of the court, in this case, it was Justice Kagan joined by Justice Sotomayor and also Chief Justice Roberts injustices Kavanaugh and Barrett.

So that five justice majority said they were pretty comfortable saying that at least one kind of application, one important application of the laws was unconstitutional. And that's the application of the laws to these curated feeds. Basically but The kinds of places on the platforms where the the company that runs the platform is collecting content from a bunch of third parties into a feed that contains things that basically recommends for its users.

And that as to that function, the Supreme Court said The platforms are pretty much like newspapers or maybe parade organizers who have First Amendment rights to choose what to include in their newspaper, whom to include in their parade and whom to exclude. On the other hand, [00:04:00] as to other functions there, this the Supreme Court said at least the majority said, we're not going to decide that.

That's going to be something that lower courts have to decide in the course of determining whether the law is indeed facially invalid because it's overbroad. And it didn't give a lot of guidance, a lot of new guidance as to whether the law is unconstitutional as to those functions. So it's a narrow decision, but an important decision.

It is important to recognize that social media platforms do indeed have the right to pick and choose what to include in these curated feeds, even if the court didn't decide whether they also have the right to block certain messages that people might exchange through direct message or by email or whether they whether a platform could eject a user because it doesn't like the user's speech.

Block the user altogether, or delete the user's posts. Those are questions the court did not did not decide. Now there are a few other interesting twists to these opinions but I just wanted to ask Jane what she thought [00:05:00] about the decision. I should say, by the way, I think that this decision about curated feeds is correct.

That platforms do have a First Amendment right to decide what to include in these feeds to offer their users, just like a newspaper has the right to decide that. I think the answer might be different as to direct messages, as to decisions whether to host a particular page or block the user from posting things in the future.

And I'm glad that the court didn't fully resolve that issue. Jane, what do you think?

Jane Bambauer: Yeah so first of all, listeners who want to go into more detail on what exactly the Florida and Texas statutes were meant to do, can listen to our earlier episode. I think our second episode ever was on this topic, Eugene, or maybe it was our third.

It was right after the oral arguments for the for the case. And And we were, I really thought that this was going to be the case where the Journal of Free Speech Law that Eugene is Eugene founded with me and Ash Bhagwat was going to get its first [00:06:00] citation here. I didn't see it though.

The very first thing I did, yes, when I will

Eugene Volokh: say, I will say that the, did not cite much by way of, oh, no. Yeah. I saw one citation to To a basically a procedural an article for the procedural issue in Justice Thomas's opinion. I saw a bunch of citations to articles about the way social media platforms work and the like.

Yeah, the more technical. But it was in a time when the justices were paying much attention to legal scholarship. To us! Paying much attention. They didn't see any particular need to tip the Yeah,

Jane Bambauer: And yet, you and I could, identify several articles that I think very well could have been cited either by the majority or by Alito's opinion, if they had wanted to.

But that's fine. So you can hear us talk a little bit more detail about the statutes if you want to. We're really. What we're hoping to do here is to highlight what the court did do and what is left unresolved. So yeah I agree [00:07:00] Eugene that I think this case is going to come to being two things.

One is that net choice was penalized in a way for a strategic decision to bring a facial challenge. And the court, the opinions even put it that way that, that decision comes with consequences and a high bar. And I think while stating it, they're actually making, they're actually strengthening the requirements by By sending this back and requiring the parties to therefore completely map out the scope of the statute and carefully, have to and have to comply with the idea that they need to show that a good portion, maybe even most of its application would be in the range of unconstitutional.

But then they also did. say that they did make a decision on what substantively a lot of us academics were paying attention to, which is when it comes to content moderation which was probably I'd say content moderation and hosting were the two things [00:08:00] that everyone had their eyes on.

Because because Of de platforming entirely and or or shadow banning certain content. Those were the two terms. De platforming and shadow banning were the two concepts that really caught fire in the national imagination. It's the reason that I think we saw these Texas and Florida laws and the opinion did say something about that.

They did decide that ultimately the analogy that won the day was the analogy to a. Parade organizer who can have a pretty capacious sense of what's allowed in and still, nevertheless, reserve their right to have the discretion to decide what doesn't get into put into the curated parade. Couldn't help though looking at Kagan's opinion on the curation function I couldn't help but see a lot of strong. Suggestions that the decision to host or not might also, wind up having to take courts to the [00:09:00] same logic, but we'll see right that's for the lower courts, to have to. Resolve at this point and then maybe also the case outcome is notable for the fact that the majority opinion was an ideologically mixed group of justices and that those who reserved.

Judgment include, um, Justice Katonji Brown Jackson, who agreed that it was right to send this back, but she would not have said quite as much or commented on quite as much regarding the even the content moderation function. Now, personally I'm curious what you think, Eugene. I'm glad they did because I think that was the big legal question that was keyed up and that the Supreme Court was, in a good position to answer.

So I'm I think it was appropriate, just as every case is not just a holding. And, I think it was appropriate maybe to, to resolve this but but the fact that she would rather not suggest that I think [00:10:00] she would be open to entertaining. Arguments that that the government might have a freer hand when it comes even to content moderation and I could say a few other things about the Alito and Thomas opinions, but maybe I'll let you first react to what I've said.

Eugene Volokh: Sure, so unsurprisingly, I agree with pretty much everything you said. I'm not sure that the majority opinion signals much about this de platforming question. Can platforms just kick someone off the site rather than just not showing their posts in the curated feeds? But but other than that, yeah, this is a decision that is an That has some meat to it, but is also a relatively narrow decision I did want to flag a couple of other things that some justices said first of all for justices Justice barrett who was in the majority, but also wrote a separate concurrence and justice alito who was writing for?

Himself and justices thomas and gorsuch, flag the question whether first amendment protects [00:11:00] ai curated material they didn't say oh, no, no way I curated Curation is not editorial discretion, but they said, it's an interesting question. It's one of the things Yeah, the fact that

Jane Bambauer: they're saying an interesting question means something, doesn't it?

Eugene Volokh: Exactly. They're saying this is one of the reasons we want to send the case back down for more factual development, for more of an as applied challenge. We'd like to know is how much of the curation is perhaps AI curation and whether that matters. That seems to me is an important signal and I would imagine that the litigants and the judges down below are going to pick up on that signal, and we're going to see more argument about that question.

Also, Justice Barrett had had a passage which pointed out that the First Amendment doesn't Fully apply to foreign speakers. Foreigners in the U. S. are generally protected by the First Amendment, but foreign persons and corporations located abroad do not have First Amendment rights, as the court held in a case four years ago.

She asks, what if the [00:12:00] platform's corporate leadership abroad makes policy decisions about the viewpoints and the content that the platform will disseminate? Does it matter that the corporation employs Americans to develop and implement this if they do so at the direction of foreign executives?

Courts may need to confront such questions when applying the First Amendment to certain platforms. Which certain platforms? She doesn't say, but it sounds like a signal for the TikTok case. Whole separate case with a very different legal issue in some respects but it's now pending in the dc circuit and it's interesting that she noted that let me mention one other thing Mostly for the sake of completeness because it's not like the court told us that much about it.

There is a separate feature of both of Florida and Texas laws that required basically individualized explanations of why certain material was being blocked or removed or what have you. So that was a disclosure requirement. It didn't that part of the law. Wasn't the [00:13:00] part that limited platform discretion to keep or remove but it required them to explain that.

Is that constitutional? The court suggested that maybe this curated feed versus other features distinction might matter. So maybe if it comes to the curated feed, the platform should be free to Not include things without explanation just like a newspaper generally isn't called to account.

Why didn't you run this op ed? Why did you choose this story? But on the other hand maybe When it comes to decisions whether to block whether To remove certain users altogether or block certain direct messages. Maybe as to that the laws the laws, disclosure provisions would be constitutional the court said the focus is on whether those disclosure provisions excessively burden the platforms speech and whether they do or don't, that's a difficult question that unfortunately we get even less guidance on in many ways than we do as to the content moderation

Jane Bambauer: question.

Sean. Although, for that, I think maybe one [00:14:00] reason they feel like they don't need to comment quite as much is that they rely on Zotero, among other cases, which was a case that sort of said that when it comes to purely like non ideological information based disclosures it laid out a test.

And so maybe they're thinking, okay, we have at least there's an established test that can be applied, but I found it interesting. That Justice Thomas's opinion went out of its way. Obviously, Justice Thomas is skeptical of the majority's decision when it comes to content moderation restrictions. And yet he also said he's skeptical of their reference to Zotera.

And he seemed to say that That, this, the idea that First Amendment interests are weaker when the government is requiring, compelling informational disclosures than it is when it's suppressing and information is suspicious to him. He doesn't think that necessarily is true.

So this shows I think how how hard it is to map out, you cannot rely on [00:15:00] someone's political valence to predict how they're coming out in these cases because he parted ways with both sets to criticize Otterer there.

Eugene Volokh: And in part, because at this point, there's very little being decided by the court.

Again, the majority does decide about the the platform's right to choose what goes into the into the curated feeds. The rest is just people saying this is something we need to think about. This is something that might merit reconsideration. So it's easy for people just to flag this as an issue, leave it to lower courts, and maybe when the case comes back, if it comes back to consider it possibly.

Consider it then. So well, that's net choice tells us something doesn't tell us a vast amount. But there's also the murphy case Jane you tell us, about murphy What happened there? And what do you think about it?

Jane Bambauer: Okay. So this was a case. We also discussed previously on our podcast This is the case In which two states and several individuals [00:16:00] based partly on the Twitter files revelations brought a suit requesting an injunction against various parts of the federal government the White House, the CDC and a few, and the FBI and a few other agencies because for exerting pressure on the social media platforms to demote certain content or remove it altogether.

And so the Fifth Circuit, we discussed the Fifth Circuit came up with a test that was trying to establish whether the government Basically, whether there's state action here, right? So if Facebook or Twitter decide to demote or remove some content, but they're doing so under some influence of the federal government can we say that they are that there's, that the government itself is acting through these intermediaries and the 5th Circuit came up with a test that I didn't think was perfect, but if, in our podcast, I think I said, But I thought it was pretty good.

The [00:17:00] court clearly was a little bit skeptical. And we both at the time, Eugene, thought they might just dump this very complex case on standing. And that's exactly what they did. So in fact Justice Amy Comey Barrett writing the majority opinion says we begin and end with standing. So it tells you everything you need to know.

And basically she thought, look, to, to get standing, especially in a case that's asking for an injunctive forward looking relief there are a couple things that can get in your One is that you need to show that The injury really results from the government's action and not from some third party.

And so in a way that means that standing is going to have a little bit of a microcosm of what the case was all about in the first place. That the, that by having to prove that the government caused ultimately a decision by the by the social media companies to demote [00:18:00] Some content.

The claimants need to show that if it weren't for the government's compulsion, interaction, whatever you want to call it, the social media company would have done something else. And then the second principle is that even if the parties had persuaded the court that in the past, some of their posts were demoted because of something that the government did that may in fact have been coercive or may have, may raise these may raise, legitimately raise the question of government action, because they're asking for forward looking relief and injunction an order to the government to not do this.

Anything like this in the future. Those past incidents are at most just a probabilistic. It's just some evidence of a probability that they may occur in the future. And so the fact that they may have happened before doesn't mean that they will happen again and the plaintiffs need to [00:19:00] come. With a little more evidence that it's likely to happen again.

So that's what they decided to do with it. I think given the complexity of the case and the sprawling facts and even the disagreement, it seems on the court about whether the factual record developed in the trial court and fifth circuit was developed well. It, it's probably not surprising that they wanted to to, stop this particular case before deciding on the merits and coming up with a test on these sort of job owning cases.

I have to say I'm a little disappointed though I do. It does seem to me to be a punt for an issue that may arise again. And I think the burden. I I guess it takes me to the edge of my understanding of civil procedure, but I thought that since the nature of this is that there may be a First Amendment violation here.

This isn't merely some kind of, it's the sort of case where usually [00:20:00] compensation is not enough. Injunctions usually make a little more sense, even based on past action. I don't know. I thought this maybe was a little bit of a stretch from what we've seen before in standing.

Eugene Volokh: Yeah. I'm not a civil procedure expert either but just stepping back just to think a little bit about standing.

There's something unconstitutional the government is doing. Before you can challenge it, generally speaking, you have to show that government's unconstitutional action actually hurt you, and that you weren't hurt by something else. You were hurt by it And then maybe in some situations you might get damages in other situations You may get an injunction if you can show that the government's action is likely to hurt you as well So the result can be frustrating for observers.

They say wait a minute Here's this thing the government is doing must have hurt somebody that is to say must have Caused some people's posts to be removed. Why would the government be Asking the platforms to remove certain material if they [00:21:00] weren't hoping that some material would be removed Why not just decide whether that's constitutional or not?

So we know whether the government was acting within its lawful powers and generally speaking the supreme court has said That's not good enough. It's not the job of this, of the courts or the Supreme Court to step in every time there's some possible injustice. You have to have the right person suing over it, developing the facts and showing that they're the ones who were hurt and they have a personal stake in the matter.

Again, this is oversimplification. It's a bit more complicated for injunctions, but that's what the court said was missing. So now we have a situation where. People still think that what the government did was wrong. Other people may think that what the government did was right, because it's good for the government, or at least permissible for the government to urge platforms to remove certain things this way.

But most people agree that there were some posts that were removed as a result of the government action, and not [00:22:00] just In completely independently of the government action, but we don't get a decision as to whether that's constitutional or not. That's just a side effect, though, of the general rule that a court can only step in when the plaintiff can show that.

The plaintiff himself or herself was actually actually harmed this way. So that's how the court decides the case. Unsurprisingly unsatisfying in many ways, but I think well within the general mainstream of how the court has dealt with similar questions in the past.

Jane Bambauer: Yeah. And I will say now that I've heard you describe it that way, there's one way of understanding this case.

That I can get behind which is, at the very least, standing is minimum requirement not only about who but about whether there really wasn't in something that we might recognize as an injury. And if you if the parties can't even show up. factual causal link between whatever it was that the government did [00:23:00] and the end result of them, their post being demoted or something, then these, the next question, which requires more than just a factual causal link, but it asks, okay even if the government Did cause in some sense, this action was it mere influence or was it coercion?

At that point, then we split causation can be legitimate or it can be illegitimate. But if you don't even get the baseline of causation, then perhaps it makes sense that we don't have the factual record to really think through whether that, whether their influence was, um, was just or not.

Eugene Volokh: One way of thinking about it, there was a case 60 years ago now, Bantam Books versus Sullivan which dealt with a structurally similar question, obviously the facts were very different, but there, there was a state government entity that basically, the allegation was, and I think established, that it had threatened bookstores.

with criminal prosecution not by the agency itself. It [00:24:00] didn't have the power to do that, but by calling in the police and prosecutors threatened the bookstores in order to get the bookstores to remove certain books that they, that the agency thought were unsuitable for children. And the Supreme court said That's not an actual prosecution, but it's enough of a threat that it's a coercive enough that it should be set aside.

But there in part, it was quite clear. The bookstores had the books on the shelves that already decided it had to make a conscious choice back then a bookstores did, it's not like social media platforms where anyone can post things. The bookstores had to decide to carry the books. They had carried the books.

The only. Reason to think the only plausible reason why they would remove the books was the government threatened them. And in fact, if the government threat went away, then it seems very likely that going forward, the bookstores would stock the books again. So there. There's a classic, very nicely teed up example of threatened government coercion.

And then the question is, was it [00:25:00] coercive or not? And the Supreme Court said, yes, in context, it wasn't merely a request. It was really coercion. It was unconstitutional. But there, the right parties sued. They sued over something that was an injury to them. And an injunction would redress that injury, would prevent that injury going forward to them.

So the Supreme Court had no problem. With a standing in this kind of situation, but in the Murthy case, the court said, the facts are much more ambiguous and at least these plaintiffs, you haven't persuaded us that they were hurt by the government action. And more importantly, because it's an injunction that going forward, the injunction was necessary to prevent future harm to these particular plaintiffs and would succeed in preventing future harm to these plaintiffs.

Jane Bambauer: Yeah.

Eugene Volokh: All right. I think we agree. I was about to say unusually, but that's not right. We usually agree, partly because we're both such reasonable people, Jane, you and I, and reasonable people should agree on such things.

Jane Bambauer: Also, right now we're just trying to [00:26:00] describe. If we were actually making dec policy decisions, maybe then we'd start but it is good to know that we see we can read the same opinions and come out describing them the same way.

That is something .

Eugene Volokh: That's right. I remember I was talking to a colleague of mine some years ago around the end of the semester when we were grading exams, and he said that he had by accident put an exam. That he had already graded back into the pile and regraded it. And then at the end, he saw it and he said, Oh, the scores were only like a couple of points apart that made him feel good that he, that his grading was at least consistent.

So here it's two different people, but it's good to know that we are that we as first amendment scholars are consistent, at least in our description of what's going on and perhaps our general evaluation as well. So that. Gives I hope gives our viewers and listeners some sense of what the court did rightly or wrongly in the net choice cases What the court did rightly or wrongly in murthy and we'll be back [00:27:00] next time talking about other interesting, free speech issues jane, always a great pleasure talking to you.

Great to see you. Eugene