Speaker 1: And we are back with another edition of the Federalist
Speaker 1: Radio Hour. I'm Matt Kittle, Senior Elections correspondent of The
Speaker 1: Federalist and your experienced Shirpa on today's quest for Knowledge.
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Speaker 1: I'm joined today by Dean Ball, research fellow with the
Speaker 1: Mercadis Center on the Supreme Court's Net choice rulings, rulings
Speaker 1: he says, that are marked by substantial uncertainty. Welcome to
Speaker 1: the Federalist Radio Dean, thank you for being here.
Speaker 2: Thanks so much for having me, Matt, as my.
Speaker 1: Colleague, Jean Fleetwood wrote at The Federalist. Following the issuance
Speaker 1: of the ruling, the US Supreme Court unanimously declined to
Speaker 1: rule on the merits of state laws curbing big text
Speaker 1: regulation of online speech, instead sending the case back to
Speaker 1: lower courts for further review. The parties have not briefed
Speaker 1: the critical issues here, and the record is underdeveloped. Associate
Speaker 1: Justice Elena Kagan wrote, for the court, Dean, Is this
Speaker 1: a matter of the Supreme Court saying playing the part
Speaker 1: of teacher and saying to the lower courts you didn't
Speaker 1: do your homework, try it again, and then we'll check
Speaker 1: your work.
Speaker 2: I think that's a good way of putting it. I
Speaker 2: think what the Court said was you need to think
Speaker 2: about this to all parties, to net Choice, to the
Speaker 2: State Solicitors General who who argued the case, and to
Speaker 2: the courts themselves, you need to think more comprehensively and
Speaker 2: also in a greater level of detail about these issues.
Speaker 1: And that's interesting because it has been such a high
Speaker 1: profile case, of course, and we've seen this in this
Speaker 1: session on a few occasions where the Supreme Court has
Speaker 1: said to lower courts you didn't answer this question. You
Speaker 1: need again, you need to go back and again, saying
Speaker 1: that to other parties involved as well. But this was
Speaker 1: the latest case where the Supreme Court is saying that
Speaker 1: the lower courts have more work to do.
Speaker 2: Yeah, and you know, the Court on internet cases in particular,
Speaker 2: the last couple of years, the Court has been keen
Speaker 2: to punt. They punted the Murphy versus Missouri case that
Speaker 2: was about government enabled a government sort of encouraged censorship
Speaker 2: on social media was decided, and in that case, the
Speaker 2: court punted on grounds that a lot of experts are
Speaker 2: pretty skeptical of. I will say, in the case with
Speaker 2: the Net Choice cases, I think the decision to send
Speaker 2: the case back made a lot of sense. And the
Speaker 2: reason for that is that Net Choice challenged these laws
Speaker 2: on what's called facial grounds, which means that the laws
Speaker 2: are on their face unconstitutional in every conceivable application of
Speaker 2: the laws. And what the court said was, you, guys,
Speaker 2: to the litigants in the court, you thought about the
Speaker 2: lower courts, You thought about social media platforms and really
Speaker 2: just the effect of these laws on the social media
Speaker 2: feeds that we're all familiar with, But you didn't think
Speaker 2: about the many, many other ways in which this law
Speaker 2: impacts websites on the Internet. Are these both of these
Speaker 2: laws do? Which is actually what a lot of critics
Speaker 2: of the laws we're saying as well.
Speaker 1: Interesting, the Eleventh Circuit Court upheld the lower courts injunction
Speaker 1: against Florida's law, the ruling that the Sunshine State's restrictions
Speaker 1: on content moderation trigger First Amendment scrutiny. Under this Court's
Speaker 1: cases protecting editorial discretion and including or concluding that the
Speaker 1: content moderation provisions are unlikely to survive iten scrutiny. But
Speaker 1: then you get the Fifth Circuit Court reversing the lower
Speaker 1: courts injunction on Texas law, ruling that the platform's content
Speaker 1: moderation activities are not speech at all and so do
Speaker 1: not implicate the First Amendment. You could not have two
Speaker 1: more divergent rulings in this case. It's not the first
Speaker 1: time that two lower courts, two appellate courts have seen
Speaker 1: things differently, of course, on the law, but they're pretty
Speaker 1: far apart in this Why.
Speaker 2: Well, I think the Fifth Circuit has been willing to
Speaker 2: entertain some more novel legal interpretations frankly, and I think
Speaker 2: the Court, the Supreme Court wanted to go out of
Speaker 2: its way and has been throughout this term. In fact,
Speaker 2: there's been a lot of tension between the Fifth Circuit
Speaker 2: and the Supreme Court, really going out of its way
Speaker 2: to tell them, no, we don't agree with your interpretations
Speaker 2: of First Amendment law. We think you've got this entirely wrong.
Speaker 2: So in that sense, the Court, I think a big
Speaker 2: part of the reason that the opinion came out the
Speaker 2: way it did, and seemed to be such a robust
Speaker 2: sort of defense of the social media platforms in some way,
Speaker 2: and argument that against these laws that the Supreme Court,
Speaker 2: the majority opinion certainly he was making. I think it
Speaker 2: had to do with because none of that opinion is
Speaker 2: binding really, because all they did was send it back
Speaker 2: to the lower courts. I think part of it was
Speaker 2: the Supreme Court trying to explain to the Fifth Circuit
Speaker 2: what they see as the problems. But the Fifth Circuit's
Speaker 2: interpretation of First Amendment law and probably went a little
Speaker 2: bit further. This is speculation on my part, but it
Speaker 2: wouldn't surprise me if the Justice is felt inclined to
Speaker 2: go a little bit further in their opinion, then they
Speaker 2: might have if their opinion had legal weight.
Speaker 1: There is no doubt that the so called social network platforms,
Speaker 1: big tech that I like to refer to them, the
Speaker 1: facebooks of the world, metas whatever we're defining them today, Twitters,
Speaker 1: the exes, whatever we're defining them today, suppress speech. You know,
Speaker 1: we have the evidence to show it, and I think
Speaker 1: there are a lot of Americans in two thousand twenty,
Speaker 1: in twenty twenty one, in particular, even since then, who
Speaker 1: have experienced the sense that, Hey, first and foremost, I
Speaker 1: don't think my message is getting out there on these platforms. Secondly,
Speaker 1: I've been told that my speech is blocked because someone
Speaker 1: doesn't like what I'm saying. All of that is very clear.
Speaker 1: The argument ultimately boils down to, does it not whether
Speaker 1: the social media networks are like the the corporate media
Speaker 1: outlets or news outlets in general, whether they can be
Speaker 1: protected under the First Amendment. If they can't, then we
Speaker 1: definitely have another argument here.
Speaker 2: Yeah. Essentially it boils down to whether these decisions that
Speaker 2: the social media platforms make be considered editorial decisions similar
Speaker 2: to the ones that a newspaper makes. And Justice Kagan
Speaker 2: and her majority opinion was forthright in stating the application
Speaker 2: of the First Amendment doesn't change based on whether or
Speaker 2: not it's the physical versus the virtual world. It doesn't
Speaker 2: change based on how many millions of decisions are being
Speaker 2: made today. If the newspaper makes one hundred decisions a
Speaker 2: day and Facebook makes a billion decisions a day, doesn't matter.
Speaker 2: That was something that she went out of her way
Speaker 2: to make a point that she went out of her
Speaker 2: way to make. However, one point that I think is
Speaker 2: underappreciated in a lot of the analysis, and especially sort
Speaker 2: of the more libertarian analysis celebrating the net choice decision.
Speaker 2: Is an important footnote in Justice Kagan's majority opinion, where
Speaker 2: she said, nothing that we're writing here is about automated
Speaker 2: algorithmic decisions made based on user preferences. So, in other words,
Speaker 2: when you go to YouTube dot com or Twitter or Facebook,
Speaker 2: the vast majority of the content that you're seeing is
Speaker 2: being purface because those companies think they have developed algorithms
Speaker 2: that look at your preferences and sort of build a
Speaker 2: profile of you and show you content that they think
Speaker 2: you're going to like, rather than moderating algorithms, Rather than
Speaker 2: rather than automated algorithms that are taking content down because
Speaker 2: it's racist, offensive, whatever, you know, whatever it might be,
Speaker 2: They those algorithms, algorithms based on user preference are actually
Speaker 2: not covered in this decision, And I think that's interesting,
Speaker 2: and I think it opens the door for not just
Speaker 2: future litigation, but also future laws and some laws that
Speaker 2: have been passed in states already that are kind of
Speaker 2: targeting the algorithmic design. I think the Court is at
Speaker 2: least opening up a door to laws like that. We'll
Speaker 2: see how open the door is. But there's at least
Speaker 2: a path. I think the.
Speaker 1: Argument in all of this as well, and there are
Speaker 1: many arguments in this, but one essential argument I think
Speaker 1: is that what happens if the platform, the editorial platform
Speaker 1: so to speak in this case, is so large and
Speaker 1: encompassing that it overshadows the other outlets of information, news
Speaker 1: outlets in particulars. Let's face it, more people are getting
Speaker 1: their information from X and Facebook and other, you know,
Speaker 1: big tech outlets than they are from newspapers. That's something
Speaker 1: that obviously has changed over the last generation in this country,
Speaker 1: and there is no sign of that changing back. So
Speaker 1: the genie is out of the bottle. The sort of
Speaker 1: protections that the big tech has had on the editorial
Speaker 1: side of things. Maybe ultimately the argument goes too much
Speaker 1: because in essence, in many ways, they're the only game
Speaker 1: in town. Is that a consideration in all of the
Speaker 1: arguments before the Supreme Court and the lower courts.
Speaker 2: Yes, and in fact a not dissenting opinion concurring opinion
Speaker 2: by the sort of conservative justices. The three most conservative
Speaker 2: justices Gorsich, Alito and Clarence Thomas. They wrote an opinion
Speaker 2: that was very much willing to entertain this idea that
Speaker 2: the social media platforms have a level of dominance over
Speaker 2: discourse that we haven't really seen before in American history,
Speaker 2: and that therefore something like a common carrier framework for
Speaker 2: regulating them might be appropriate. It might be appropriate to
Speaker 2: think of them in that way. I guess as a
Speaker 2: policy analyst, the way I look at that is and
Speaker 2: as a free speech advocate more than I am a
Speaker 2: policy analyst, right, That's very important to me. I don't
Speaker 2: love the way that Facebook, Google, and for a long time,
Speaker 2: Twitter and some of these other companies have stewarded their platforms.
Speaker 2: I think they really should have even though they weren't
Speaker 2: under a legal obligation to follow the First Amendment, I
Speaker 2: think they should have. I think they should have understood
Speaker 2: that they had a moral obbligation as an American company
Speaker 2: to do that, and they did, and I find that
Speaker 2: to be a shame. I think it's really hurt them
Speaker 2: in terms of their reputations, not just with policymakers but
Speaker 2: with broader public. I think that what Elon Musk is
Speaker 2: doing with Twitter is really interesting, and that he is
Speaker 2: trying to be more of a First Amendment guided platform,
Speaker 2: and I hope that we see markets kind of try
Speaker 2: to guide the social media platforms toward that toward that outcome.
Speaker 2: But what I would say about the Common Carrier frameworks
Speaker 2: for regulation and similar ideas as a policy matter is
Speaker 2: that if you're not crazy about these companies and their
Speaker 2: level of power, Common Carrier is a double edged sword,
Speaker 2: because yes, it allows government to exert more control over
Speaker 2: them that they otherwise wouldn't be able to. It also
Speaker 2: guarantees that they're locked in forever, and nothing is forever
Speaker 2: in technology. It feels like the social media platforms have
Speaker 2: been dominant forever and that they will be dominant forever.
Speaker 2: But Microsoft seemed like a insurmountable monopoly with ninety five
Speaker 2: percent of the computer market share really not that long ago.
Speaker 2: You know, I was ten when that was the case.
Speaker 2: These companies are powerful, but they can be competed with,
Speaker 2: and more importantly than being competed with, they can be
Speaker 2: the entire paradigm can change in technology and we might
Speaker 2: be living You know, what I write about all most
Speaker 2: of my day is ai we might be living in
Speaker 2: a time when just such a change is happening. So
Speaker 2: it seems to me like, right now is actually the
Speaker 2: time where we really don't want to lock anything in place.
Speaker 2: If we're not happy with the status quo. Major regulations
Speaker 2: have a tendency of locking dynamics in place, and if
Speaker 2: we really want the status quo to change, maybe we
Speaker 2: should give the next few years a shot and sort
Speaker 2: of see how things play out next.
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Speaker 1: Well, you're absolutely right that everything is subject to change.
Speaker 1: I remember, many many moons ago that atari that was
Speaker 1: the system to beat, and guess what it was beaten,
Speaker 1: beaten badly Pong could only compete for so long, and
Speaker 1: then people wanted more than Pong. I guess is ultimately
Speaker 1: the question. And so I knew as you were talking
Speaker 1: about fre free speech and policy issues. I knew as
Speaker 1: you explain that there was going to be a butt involved,
Speaker 1: and I certainly understand it. So your argument is, again
Speaker 1: the market place will well, let me take that back.
Speaker 1: Obviously there's a market marketplace consideration in here as to
Speaker 1: the marketplace. Do you believe that after all of the
Speaker 1: bad press and there still should be some more accountability
Speaker 1: I think in the press of what big tech has done.
Speaker 1: But that said, after all of the bad press, do
Speaker 1: you think that these mega big tech giants will change
Speaker 1: their policies somehow to be more First Amendment friendly given
Speaker 1: that that's what the marketplace is screaming about? Or is
Speaker 1: the marketplace actually screaming about that.
Speaker 2: I think it is. I think it's something that's going
Speaker 2: to happen slowly. These companies, you know, especially Google, Google
Speaker 2: these days is not known. They were once a dynamic,
Speaker 2: fast moving capitalists, you know, Hyena, Not so much anymore.
Speaker 2: They're they're viewed by many people in the valley is
Speaker 2: kind of where good ideas go to die. You know,
Speaker 2: that might not be true. That's not necessarily my view.
Speaker 2: But but a lot of people would say that Google
Speaker 2: moves very slowly, so we'll see. I would say, you know,
Speaker 2: you've certainly seen Meta move in the direction uh, in
Speaker 2: this kind of direction. Obviously, Twitter x under under Elon
Speaker 2: Musk has done. So we've seen a flourishing you know.
Speaker 2: My I've built my platform on substack, which is a
Speaker 2: little different. It's it's never going to be as big
Speaker 2: as a big social media platform, but that's a that's
Speaker 2: a great you know, there's no censorship really to speak
Speaker 2: of on substack. Google and YouTube are the big question.
Speaker 2: YouTube is how a lot of especially young people consume
Speaker 2: almost all of the information they receive. They spend a
Speaker 2: huge amount of their time on YouTube. I think Google
Speaker 2: is learning the hard way that their in turn culture
Speaker 2: is not very appealing to uh, to most Americans. They
Speaker 2: had an AI model, a large language model like chat
Speaker 2: GPT that came out a couple of months ago called Gemini,
Speaker 2: which the academic community everybody was like, oh, this is
Speaker 2: very architecturally interesting. There's lots of technical innovation here. It
Speaker 2: hits the consumer marketplace and immediately it's discovered, Oh, this
Speaker 2: thing is, this thing is unbelievably politically skewed and just
Speaker 2: I mean not you know, beyond even politically skewed, just stupid, right,
Speaker 2: politically made very yeah, yeah, a very smart language model
Speaker 2: made stupid and dumb because of trying by by trying
Speaker 2: to be I should I should say stuid dum, I
Speaker 2: should say stupid and wrong, oftentimes in an effort to
Speaker 2: make it not racist, which is sort of you know,
Speaker 2: exactly what the college system does uh to uh to
Speaker 2: young people all over the place, kind of just courses
Speaker 2: the quality of their thought of young people's thoughts. That's
Speaker 2: what happened with Gemini, and I think that blew up
Speaker 2: in Google space, right, and I think that was probably
Speaker 2: a come to Jesus moment for them. I think it
Speaker 2: very well may have been. So we'll see, we will see,
Speaker 2: but I'm hopeful, I'm hopeful that there will be some
Speaker 2: change in the right direction.
Speaker 1: Dean ball research fellow with the Mercada centered on the
Speaker 1: Supreme courts and net choice rulings, as we note, rulings
Speaker 1: that are marked with a substantial uncertainty. That is what
Speaker 1: Dean has said in writing on the subject in our
Speaker 1: conversation today, and absolutely, I think if you look at
Speaker 1: this these decisions, there remains to be a number of questions,
Speaker 1: a number of questions need to be answered on that front.
Speaker 1: I want to go back to what you just mentioned,
Speaker 1: you know, the indoctrination of a generation, and that's what
Speaker 1: worries me. You see the polling out there where you
Speaker 1: have people, young people of a certain age, who prefer
Speaker 1: kindness over free speech, right, that's what they have been
Speaker 1: trained to think. That opposing viewpoints that may cause conflict
Speaker 1: or may hurt someone's feelings, even that that should not
Speaker 1: those viewpoints should not be protected. It's pretty clear that
Speaker 1: a lot of big tech or the biggest of the
Speaker 1: big tech players emulated that idea, and that is why
Speaker 1: we're in the place that we're in. And so the
Speaker 1: question is there any hope that these players will change,
Speaker 1: because that's what the next generation is demanding they do.
Speaker 2: I think there is hope, and I'll tell you why.
Speaker 2: I absolutely hear everything you're saying, and trust me, not
Speaker 2: just the social media platforms, but so many other forces
Speaker 2: in our society that have done this to young people.
Speaker 2: Is one of the few things that makes me legitimately angry.
Speaker 2: I try not to get mad about the things that
Speaker 2: I write about in public policy because they're beyond my control,
Speaker 2: but this is one that does. And you know, I
Speaker 2: think again, I'm so heartened by what we've seen on
Speaker 2: Twitter in the last two years, where you know, I
Speaker 2: don't agree with every single decision Elon Musk has made
Speaker 2: in running that company, But the net result of Twitter
Speaker 2: is that it is a social force for the First Amendment.
Speaker 2: It is showing why the First Amendment is valuable, and
Speaker 2: it's showing it to young people during their formative years.
Speaker 2: I think, you know, when you're sixteen, the idea that oh,
Speaker 2: we shouldn't say mean things, we should only say nice things,
Speaker 2: and you know, you kind of don't think about the
Speaker 2: complexity of like how do you adjudicate what's true and
Speaker 2: what's not true, or what's mean and what's nice? You know,
Speaker 2: But then as you get older you do. And so
Speaker 2: I think that Twitter will be this place where people
Speaker 2: will kind of learn and see the differences and sort
Speaker 2: of have a force for pushback. But that being said,
Speaker 2: I think it's incumbent upon you know, I'm not that
Speaker 2: much older than the generation Z. But but I think
Speaker 2: it's incumbent upon all older people to demonstrate to younger
Speaker 2: people really to lead by example and to demonstrate what
Speaker 2: why we have the First Amendment? Why is it number one?
Speaker 2: And why does it say importantly for the net choice decisions.
Speaker 2: I think Congress shall make no law. It doesn't say
Speaker 2: some laws. It says no law. And I think that's
Speaker 2: that's very important for me. So I'm I am hopeful,
Speaker 2: I remain I remain hopeful, and I will say, like
Speaker 2: the Gemini, you know, the Gemini incident with Google, the
Speaker 2: only reason that blew up was because of Twitter, and
Speaker 2: Twitter of three years ago might well have censored that.
Speaker 2: I think about that all the time. There's so many
Speaker 2: controversies today where I think to myself, would this be
Speaker 2: something people are talking about on the pages of the
Speaker 2: New York Times if Elon Musk didn't own Twitter, and
Speaker 2: that in and of itself is a powerful force.
Speaker 1: That's a very important point I want to get to
Speaker 1: in just a moment that you just mentioned that again,
Speaker 1: Congress shall make no laws that disrupt or interfere in
Speaker 1: infringe upon the right of citizens. For that first and primary,
Speaker 1: But before I do that, because in so many cases
Speaker 1: we've seen of late Congress doesn't even get the chance
Speaker 1: to make the law. It is we have unelected bureaucrats,
Speaker 1: and I want to get to that in just a moment.
Speaker 1: I think this is an interesting comment from Justice Thomas
Speaker 1: in the ruling. Out of the sea of variegated and
Speaker 1: complex functions that platforms perform, the Court plucks out to
Speaker 1: Facebook's newsfeed and YouTube's homepage and declares that they may
Speaker 1: be protected by the First Amendment. The Court does so
Speaker 1: on a record that it itself describes as incomplete and underdeveloped,
Speaker 1: and by sidestepping several pressing factual and legal questions. As
Speaker 1: Justice Alito explains, the Court's approach is both unwarranted and mistaken.
Speaker 1: What do you think about that? I mean, that's that's
Speaker 1: typical Clarence Thomas language, very assertive, very forceful, and to
Speaker 1: the point. But you do have the majority it appears
Speaker 1: seeming to side or seeming the argument is the majority
Speaker 1: playing favorites here before the issue is actually decided.
Speaker 2: Yeah, I think that's I think Justice Thomas is, you know,
Speaker 2: his words there are very well taken. To me. There
Speaker 2: is a little bit of irony in the fact that
Speaker 2: the majority opinion like in a stylized way, is basically saying,
Speaker 2: you guys didn't think about this enough, and you only
Speaker 2: focused on one or two things, and then let me
Speaker 2: write fifty pages about those one or two things. Right,
Speaker 2: There is certainly an irony to that. I think it
Speaker 2: has wes to do. Frankly, this is just again my
Speaker 2: own personal speculation here. I think it might have to
Speaker 2: do somewhat less with the merits of the net choice case.
Speaker 2: It's not unrelated, of course, to the merits of the
Speaker 2: net choice case. But I think it is more about
Speaker 2: very publicly, frankly, spanking the Fifth Circuit, because that's what
Speaker 2: I mean. Kagan. Justice Kagan came back to the Fifth
Speaker 2: Circuit is dead wrong about X Y Z over and
Speaker 2: over and over again, and I think it's really trying
Speaker 2: to correct that so that that they don't have to
Speaker 2: have this fight again. But in not just case Justice
Speaker 2: Kagan's opinion, but also in the dessense from Justice Barrett
Speaker 2: and Justice Alito's are not the sense. I keep saying
Speaker 2: that they felt like the sense, but they really work concurrences.
Speaker 2: Justice Barrett's concurrence and Justice Alito's concurrence. They pointed out
Speaker 2: all these complexities about things that matter to me. In particular,
Speaker 2: AI said, you know, are these if these automated moderation
Speaker 2: decisions are being made by a large language model, does
Speaker 2: a large language model have expression rights under the Constitution?
Speaker 2: Do we at least think about that? Is a ligne
Speaker 2: from Justice Alito's concurrence. And I think that's exactly right. Absolutely,
Speaker 2: you should be thinking about that one hundred percent. And
Speaker 2: there are many things that were not considered both by
Speaker 2: in the lower courts but also in the majority opinion,
Speaker 2: which I think does have some irony.
Speaker 1: To it, as I noted a moment ago, as we
Speaker 1: talk about the whole structure of these arguments, what we
Speaker 1: have seen and we've seen it before, but we have
Speaker 1: seen it at I think an alarming rate over the
Speaker 1: last several years in this country. And that is and
Speaker 1: I think this speaks to another Supreme Court decision in
Speaker 1: the overturning of Chevron. But you know, the administrative state
Speaker 1: eight the power in some cases of the deep state,
Speaker 1: as we have seen very clearly documented the federal government
Speaker 1: working to suppress speech, working with these big tech players
Speaker 1: we've been talking about to suppress speech. Now I know
Speaker 1: these cases specifically dealt with the social media players. But
Speaker 1: it is hard to or it should be very difficult
Speaker 1: to come to a judgment or a decision without the
Speaker 1: context of the you know, the iron fist of the
Speaker 1: federal government, particularly unelected bureaucrats operating in the shadows to
Speaker 1: suppress speech.
Speaker 2: Yes, yes, absolutely, And I think there's a really interesting
Speaker 2: tension between the Murphy versus Missouri case, which I can
Speaker 2: talk about if you want choice and Chevron. So I'll
Speaker 2: just the Chevron decision if your if your listeners, uh
Speaker 2: don't know, uh, basically or the lower Right decision was
Speaker 2: the name of the case it struck down. It overruled
Speaker 2: another case called Chefron Chevron versus n R d C
Speaker 2: from the eighties. And in the Chevron case, what they
Speaker 2: the there was a legal doctrine developed. It's called Chevron deference,
Speaker 2: where when an agency interprets an ambiguity in a law
Speaker 2: that Congress has passed, the courts have to defer to
Speaker 2: that agency's interpretation if the interpretation is quote reasonable. That
Speaker 2: led to it was actually, interestingly enough, a kind of
Speaker 2: a conservative thing at the time, and it was done
Speaker 2: during a period when Reagan, when President Reagan was trying
Speaker 2: to deregulate a lot of a lot of things, and
Speaker 2: agencies were taking more modest into repretations of their powers.
Speaker 2: But what it in the long term, as these things
Speaker 2: often do, what it turned into was a huge expansion
Speaker 2: of agency power without Congress granting it through new laws.
Speaker 2: And the Supreme Court overturned that they had already been
Speaker 2: It had been dying. Chevron deference had been dying for
Speaker 2: a decade at the Supreme Court, but they finally they
Speaker 2: finally killed it last week with the decision in Loper Right.
Speaker 2: And I think it's a very impactful case in the
Speaker 2: long term, will take some time to see. But then
Speaker 2: ironically right the Court said, there was this big defense
Speaker 2: in the lower Right decision. We're overturning Chevron because sports
Speaker 2: are the people who decide how to resolve statutory ambiguities,
Speaker 2: not agencies. Well simultaneous, well simultaneously punting on a case
Speaker 2: where the government was collaborating with social media companies to
Speaker 2: suppress American speech. And we know that that's not disputed,
Speaker 2: that's in the record. This is nobody in the Supreme
Speaker 2: Court would dispute that that was in essence happening. Their
Speaker 2: reason for punting on the cases were technical and not
Speaker 2: really all that interesting.
Speaker 1: Yes, standing questions, which is yeah, which is what we've
Speaker 1: we've seen in a number of cases this session lacking,
Speaker 1: lacking standing. But again, the the the arguments for that
Speaker 1: under underpinning the Mirtha v. Missouri case, as you know,
Speaker 1: clearly documented the many instances where the and and and
Speaker 1: Since that case was filed, we've had even.
Speaker 2: More absolutely and I think if if the court, you know,
Speaker 2: I think the Chevron decision is very likely over time.
Speaker 2: My friend at the R. Street Institute, a guy named
Speaker 2: Adam Feher, has made this point before that you know
Speaker 2: what Chevron is likely to do is drive agencies more
Speaker 2: and more towards what's called soft law. So instead of
Speaker 2: even doing new interpretations of laws that you create as
Speaker 2: formal rules, instead of doing that, we're just going to
Speaker 2: start doing a bunch of informal stuff, issuing best practices, documents, guidance,
Speaker 2: making speeches. You know, Lena Khan might go to an
Speaker 2: event and make a speech and say I really don't
Speaker 2: like Google, and Google stock price goes down by eight percent,
Speaker 2: or I really don't like Northrop Grummen, or whoever it
Speaker 2: might be and one of those forms of soft regulation
Speaker 2: is exactly what we saw in Murphy v. Missouri, with
Speaker 2: government agencies, the White House and other law enforcement agencies
Speaker 2: as well, emailing the social media companies and just basically
Speaker 2: threatening them with regulation, threatening them with retaliation of various kinds,
Speaker 2: implicitly indexlicitly to do, you know, in telling them to
Speaker 2: do certain things. We'll see more of that. And if
Speaker 2: that stuff is just going to evade the eye of
Speaker 2: the law, we have a problem on our hands. So
Speaker 2: I find it's there's a tension here where the court
Speaker 2: is saying we're going to take this on, but then
Speaker 2: they're also allowing this job owning in Murphy v. Missouri
Speaker 2: to happen unabated, and there is a fundamental tension there.
Speaker 1: Dear colleague, it would be unfortunate if anything bad happened
Speaker 1: to you or your company. I mean that that's basically
Speaker 1: what we have in place with the you know, the
Speaker 1: soft legislation. But you know, this is the argument that
Speaker 1: keeps coming up unbelievably from you know, big government supporters,
Speaker 1: big government advocates, the left in general, is that the
Speaker 1: government has speech rights that it does that it simply
Speaker 1: does not have you know, these Bill of Rights, the
Speaker 1: Constitution in general, as we know, as we're looking at
Speaker 1: celebrating to nearly two hundred and fifty years as a country,
Speaker 1: the Constitution was not created to support the government the
Speaker 1: government's rights. It was created to support the people's rights
Speaker 1: and the rights of the people who ultimately have control
Speaker 1: over the government. And I think I think it's lost.
Speaker 1: Do you believe that it's lost in the argument that
Speaker 1: we're hearing, and we've heard it predominantly as the argument
Speaker 1: on the left for the last several years in this country.
Speaker 1: It's even in their briefings to the Supreme Court that
Speaker 1: somehow the government has speech rights in all of this.
Speaker 2: Yes, absolutely, and it's it's uh. I find it ironic
Speaker 2: because one way to think about the Bill of Rights,
Speaker 2: at least the first amendment, is that it is regulation
Speaker 2: imposed by the people on the government. It's one of
Speaker 2: the few items of regulation that we impose on them,
Speaker 2: and the people who want to expand government hate it.
Speaker 2: And it's sort of like, yeah, I'm not shocked. Now
Speaker 2: you understand how the rest of us feel all the
Speaker 2: time at least I do you know about about regulation?
Speaker 2: Certainly a lot of corporations feel that way. Yeah, no,
Speaker 2: I think that's true, and I think that you know,
Speaker 2: there was an up ed by Tim Tim Blue in
Speaker 2: the New York Times yesterday with the headline the First
Speaker 2: Amendment is out of control, and you know, one of
Speaker 2: his arguments is that the First Amendment is preventing government
Speaker 2: from doing its job. And when I hear things.
Speaker 1: Like that, that is just that. Can we take a moment,
Speaker 1: have a moment of silence for how stunning that argument is.
Speaker 1: It's just and nauseating too. I don't want to forget nauseating,
Speaker 1: but you're right. I mean, wow, that is a remarkable statement.
Speaker 2: It is, it is, and it's just. It goes to
Speaker 2: show I mean, someone like Tim wou knows better. And
Speaker 2: you know, for someone like that, I would invite, you know,
Speaker 2: people who believe that that are law professors to practice
Speaker 2: law in Europe where they don't have these right but
Speaker 2: to see this percolating down, you know. To return to
Speaker 2: the point about the younger generation, I think one of
Speaker 2: the most profound problems that we have as a country
Speaker 2: is that we are we do a very bad job
Speaker 2: of telling a story about ourselves and imparting that to
Speaker 2: younger people, and that's called civics. Fundamentally, that's called civics.
Speaker 2: And I think we do just a really mediocre job
Speaker 2: of it, and you know, I hope we can do
Speaker 2: better over time.
Speaker 1: I think I think in many cases doing better is
Speaker 1: exactly what we need. As we wrap up our conversation,
Speaker 1: let me ask you then, and you brought it up
Speaker 1: Murphy va. Missouri very much. I think in many different
Speaker 1: ways tied into the net choice ruling. Where does all
Speaker 1: of this go from here? In both cases we have
Speaker 1: remanded back to the lower courts to deal with the cleanup,
Speaker 1: if you will. Where do you see all of this
Speaker 1: going in the years ahead?
Speaker 2: Yeah, so Murphy the majority Missouri. It was actually a
Speaker 2: preliminary injunction, which means that it happened that went to
Speaker 2: the Supreme Course at the beginning of its sort of
Speaker 2: legal journey. And now we'll go back to the district
Speaker 2: court that it came from, and it'll go through everything
Speaker 2: that a federal case goes through. So it'll go through
Speaker 2: fact finding, discovery, and there'll be years of that ahead,
Speaker 2: and it would not surprise me to see that return,
Speaker 2: to see it return to the courts at some point
Speaker 2: in the future. So I think there's more to come
Speaker 2: on almost so often is the case with the Court,
Speaker 2: More to come in several years. We learned a lot,
Speaker 2: and also there's a lot more questions and will answer
Speaker 2: them in several years.
Speaker 1: So stay tuned. Film at eleven, as they used to say.
Speaker 1: If I still say that, because I don't believe they
Speaker 1: use film anymore, which that statement ultimately dates me. It's
Speaker 1: so many statements unfortunately these days, do very interesting all things.
Speaker 1: As we know, this is the first right, it is
Speaker 1: the primary right in the Bill of Rights, and it
Speaker 1: is so for a reason. Free speech, a free press,
Speaker 1: free thought, free conscience all time, and the ability to
Speaker 1: freely assemble so critical, so very essential to upholding the
Speaker 1: republic envisioned by our founders, the republic that I hope
Speaker 1: the vast majority of Americans still cherish and want to continue,
Speaker 1: But sometimes I have my doubts. Thanks to my guest today,
Speaker 1: and thank you so much again Dean, for taking time
Speaker 1: and really focusing on the overall impacts of these decisions
Speaker 1: what they ultimately mean. My guest today, Dean Ball, research
Speaker 1: fellow with the Mercada Center, on the Supreme Court's Net
Speaker 1: choice ruling.
Speaker 2: Thanks so much for having me.
Speaker 1: Absolutely you've been listening to another edition of The Federalist
Speaker 1: Radio Hour. I'm Matt Kittle, Senior correspondent at the Federalist.
Speaker 1: We'll be back soon with more. Until then, stay lovers
Speaker 1: of freedom and anxious for the frame.
Speaker 2: I heard the fame voice the Reason, and then it
Speaker 2: faded away.