1 00:00:17,199 --> 00:00:19,679 Speaker 1: And we are back with another edition of the Federalist 2 00:00:19,800 --> 00:00:23,160 Speaker 1: Radio Hour. I'm Matt Kittle, Senior Elections correspondent of The 3 00:00:23,160 --> 00:00:27,760 Speaker 1: Federalist and your experienced Shirpa on today's quest for Knowledge. 4 00:00:28,120 --> 00:00:31,480 Speaker 1: As always, you can email the show at radio at 5 00:00:31,519 --> 00:00:36,799 Speaker 1: the Federalist dot com, follow us on x at FDR LST, 6 00:00:37,560 --> 00:00:41,840 Speaker 1: make sure to subscribe wherever you download your podcast, and 7 00:00:41,920 --> 00:00:45,079 Speaker 1: of course to the premium version of our website as well. 8 00:00:45,679 --> 00:00:48,479 Speaker 1: I'm joined today by Dean Ball, research fellow with the 9 00:00:48,520 --> 00:00:53,479 Speaker 1: Mercadis Center on the Supreme Court's Net choice rulings, rulings 10 00:00:53,520 --> 00:00:59,079 Speaker 1: he says, that are marked by substantial uncertainty. Welcome to 11 00:00:59,079 --> 00:01:01,439 Speaker 1: the Federalist Radio Dean, thank you for being here. 12 00:01:02,159 --> 00:01:04,799 Speaker 2: Thanks so much for having me, Matt, as my. 13 00:01:04,879 --> 00:01:08,560 Speaker 1: Colleague, Jean Fleetwood wrote at The Federalist. Following the issuance 14 00:01:08,560 --> 00:01:12,799 Speaker 1: of the ruling, the US Supreme Court unanimously declined to 15 00:01:13,000 --> 00:01:16,560 Speaker 1: rule on the merits of state laws curbing big text 16 00:01:16,719 --> 00:01:21,239 Speaker 1: regulation of online speech, instead sending the case back to 17 00:01:21,480 --> 00:01:27,000 Speaker 1: lower courts for further review. The parties have not briefed 18 00:01:27,000 --> 00:01:31,959 Speaker 1: the critical issues here, and the record is underdeveloped. Associate 19 00:01:32,200 --> 00:01:36,079 Speaker 1: Justice Elena Kagan wrote, for the court, Dean, Is this 20 00:01:36,159 --> 00:01:40,359 Speaker 1: a matter of the Supreme Court saying playing the part 21 00:01:40,400 --> 00:01:43,359 Speaker 1: of teacher and saying to the lower courts you didn't 22 00:01:43,400 --> 00:01:47,319 Speaker 1: do your homework, try it again, and then we'll check 23 00:01:47,359 --> 00:01:47,799 Speaker 1: your work. 24 00:01:48,799 --> 00:01:51,079 Speaker 2: I think that's a good way of putting it. I 25 00:01:51,079 --> 00:01:54,079 Speaker 2: think what the Court said was you need to think 26 00:01:54,120 --> 00:01:58,280 Speaker 2: about this to all parties, to net Choice, to the 27 00:01:58,280 --> 00:02:01,760 Speaker 2: State Solicitors General who who argued the case, and to 28 00:02:01,799 --> 00:02:06,040 Speaker 2: the courts themselves, you need to think more comprehensively and 29 00:02:06,159 --> 00:02:09,120 Speaker 2: also in a greater level of detail about these issues. 30 00:02:11,680 --> 00:02:16,159 Speaker 1: And that's interesting because it has been such a high 31 00:02:16,199 --> 00:02:19,639 Speaker 1: profile case, of course, and we've seen this in this 32 00:02:19,800 --> 00:02:24,319 Speaker 1: session on a few occasions where the Supreme Court has 33 00:02:24,400 --> 00:02:30,039 Speaker 1: said to lower courts you didn't answer this question. You 34 00:02:30,120 --> 00:02:33,800 Speaker 1: need again, you need to go back and again, saying 35 00:02:33,840 --> 00:02:37,599 Speaker 1: that to other parties involved as well. But this was 36 00:02:37,919 --> 00:02:41,599 Speaker 1: the latest case where the Supreme Court is saying that 37 00:02:42,680 --> 00:02:44,719 Speaker 1: the lower courts have more work to do. 38 00:02:46,000 --> 00:02:49,879 Speaker 2: Yeah, and you know, the Court on internet cases in particular, 39 00:02:50,039 --> 00:02:52,599 Speaker 2: the last couple of years, the Court has been keen 40 00:02:52,840 --> 00:02:58,759 Speaker 2: to punt. They punted the Murphy versus Missouri case that 41 00:02:59,240 --> 00:03:05,159 Speaker 2: was about government enabled a government sort of encouraged censorship 42 00:03:05,240 --> 00:03:09,199 Speaker 2: on social media was decided, and in that case, the 43 00:03:09,919 --> 00:03:14,080 Speaker 2: court punted on grounds that a lot of experts are 44 00:03:14,199 --> 00:03:17,680 Speaker 2: pretty skeptical of. I will say, in the case with 45 00:03:17,759 --> 00:03:21,800 Speaker 2: the Net Choice cases, I think the decision to send 46 00:03:21,800 --> 00:03:24,400 Speaker 2: the case back made a lot of sense. And the 47 00:03:24,400 --> 00:03:27,960 Speaker 2: reason for that is that Net Choice challenged these laws 48 00:03:28,599 --> 00:03:33,080 Speaker 2: on what's called facial grounds, which means that the laws 49 00:03:33,159 --> 00:03:37,960 Speaker 2: are on their face unconstitutional in every conceivable application of 50 00:03:38,000 --> 00:03:43,000 Speaker 2: the laws. And what the court said was, you, guys, 51 00:03:43,080 --> 00:03:46,000 Speaker 2: to the litigants in the court, you thought about the 52 00:03:46,000 --> 00:03:50,960 Speaker 2: lower courts, You thought about social media platforms and really 53 00:03:51,039 --> 00:03:54,840 Speaker 2: just the effect of these laws on the social media 54 00:03:54,879 --> 00:03:57,039 Speaker 2: feeds that we're all familiar with, But you didn't think 55 00:03:57,080 --> 00:04:02,680 Speaker 2: about the many, many other ways in which this law 56 00:04:02,840 --> 00:04:05,879 Speaker 2: impacts websites on the Internet. Are these both of these 57 00:04:05,960 --> 00:04:08,319 Speaker 2: laws do? Which is actually what a lot of critics 58 00:04:08,319 --> 00:04:10,000 Speaker 2: of the laws we're saying as well. 59 00:04:11,599 --> 00:04:15,360 Speaker 1: Interesting, the Eleventh Circuit Court upheld the lower courts injunction 60 00:04:15,439 --> 00:04:19,680 Speaker 1: against Florida's law, the ruling that the Sunshine State's restrictions 61 00:04:19,680 --> 00:04:25,600 Speaker 1: on content moderation trigger First Amendment scrutiny. Under this Court's 62 00:04:26,000 --> 00:04:32,160 Speaker 1: cases protecting editorial discretion and including or concluding that the 63 00:04:32,199 --> 00:04:37,399 Speaker 1: content moderation provisions are unlikely to survive iten scrutiny. But 64 00:04:37,439 --> 00:04:40,319 Speaker 1: then you get the Fifth Circuit Court reversing the lower 65 00:04:40,360 --> 00:04:45,399 Speaker 1: courts injunction on Texas law, ruling that the platform's content 66 00:04:45,519 --> 00:04:49,959 Speaker 1: moderation activities are not speech at all and so do 67 00:04:50,120 --> 00:04:53,480 Speaker 1: not implicate the First Amendment. You could not have two 68 00:04:54,319 --> 00:04:59,680 Speaker 1: more divergent rulings in this case. It's not the first 69 00:04:59,680 --> 00:05:03,720 Speaker 1: time that two lower courts, two appellate courts have seen 70 00:05:03,800 --> 00:05:08,839 Speaker 1: things differently, of course, on the law, but they're pretty 71 00:05:08,879 --> 00:05:10,399 Speaker 1: far apart in this Why. 72 00:05:11,879 --> 00:05:16,240 Speaker 2: Well, I think the Fifth Circuit has been willing to 73 00:05:16,439 --> 00:05:21,639 Speaker 2: entertain some more novel legal interpretations frankly, and I think 74 00:05:21,639 --> 00:05:23,680 Speaker 2: the Court, the Supreme Court wanted to go out of 75 00:05:23,720 --> 00:05:27,920 Speaker 2: its way and has been throughout this term. In fact, 76 00:05:27,920 --> 00:05:30,040 Speaker 2: there's been a lot of tension between the Fifth Circuit 77 00:05:30,079 --> 00:05:32,920 Speaker 2: and the Supreme Court, really going out of its way 78 00:05:32,959 --> 00:05:36,319 Speaker 2: to tell them, no, we don't agree with your interpretations 79 00:05:36,360 --> 00:05:39,319 Speaker 2: of First Amendment law. We think you've got this entirely wrong. 80 00:05:39,800 --> 00:05:43,600 Speaker 2: So in that sense, the Court, I think a big 81 00:05:43,639 --> 00:05:45,600 Speaker 2: part of the reason that the opinion came out the 82 00:05:45,600 --> 00:05:49,079 Speaker 2: way it did, and seemed to be such a robust 83 00:05:51,439 --> 00:05:54,560 Speaker 2: sort of defense of the social media platforms in some way, 84 00:05:54,639 --> 00:05:58,360 Speaker 2: and argument that against these laws that the Supreme Court, 85 00:05:58,800 --> 00:06:01,439 Speaker 2: the majority opinion certainly he was making. I think it 86 00:06:01,519 --> 00:06:05,279 Speaker 2: had to do with because none of that opinion is 87 00:06:05,279 --> 00:06:07,600 Speaker 2: binding really, because all they did was send it back 88 00:06:07,600 --> 00:06:09,600 Speaker 2: to the lower courts. I think part of it was 89 00:06:11,160 --> 00:06:14,959 Speaker 2: the Supreme Court trying to explain to the Fifth Circuit 90 00:06:15,279 --> 00:06:17,639 Speaker 2: what they see as the problems. But the Fifth Circuit's 91 00:06:17,639 --> 00:06:21,000 Speaker 2: interpretation of First Amendment law and probably went a little 92 00:06:21,040 --> 00:06:23,600 Speaker 2: bit further. This is speculation on my part, but it 93 00:06:23,600 --> 00:06:26,240 Speaker 2: wouldn't surprise me if the Justice is felt inclined to 94 00:06:26,279 --> 00:06:30,399 Speaker 2: go a little bit further in their opinion, then they 95 00:06:30,480 --> 00:06:32,839 Speaker 2: might have if their opinion had legal weight. 96 00:06:34,120 --> 00:06:39,120 Speaker 1: There is no doubt that the so called social network platforms, 97 00:06:39,160 --> 00:06:42,160 Speaker 1: big tech that I like to refer to them, the 98 00:06:42,639 --> 00:06:46,959 Speaker 1: facebooks of the world, metas whatever we're defining them today, Twitters, 99 00:06:47,600 --> 00:06:52,839 Speaker 1: the exes, whatever we're defining them today, suppress speech. You know, 100 00:06:53,399 --> 00:06:56,560 Speaker 1: we have the evidence to show it, and I think 101 00:06:56,560 --> 00:07:00,319 Speaker 1: there are a lot of Americans in two thousand twenty, 102 00:07:00,360 --> 00:07:03,759 Speaker 1: in twenty twenty one, in particular, even since then, who 103 00:07:03,759 --> 00:07:09,000 Speaker 1: have experienced the sense that, Hey, first and foremost, I 104 00:07:09,040 --> 00:07:13,079 Speaker 1: don't think my message is getting out there on these platforms. Secondly, 105 00:07:13,120 --> 00:07:16,160 Speaker 1: I've been told that my speech is blocked because someone 106 00:07:16,199 --> 00:07:21,000 Speaker 1: doesn't like what I'm saying. All of that is very clear. 107 00:07:21,720 --> 00:07:25,680 Speaker 1: The argument ultimately boils down to, does it not whether 108 00:07:27,439 --> 00:07:35,000 Speaker 1: the social media networks are like the the corporate media 109 00:07:35,279 --> 00:07:39,240 Speaker 1: outlets or news outlets in general, whether they can be 110 00:07:39,279 --> 00:07:43,000 Speaker 1: protected under the First Amendment. If they can't, then we 111 00:07:43,160 --> 00:07:45,360 Speaker 1: definitely have another argument here. 112 00:07:46,600 --> 00:07:50,480 Speaker 2: Yeah. Essentially it boils down to whether these decisions that 113 00:07:50,519 --> 00:07:56,279 Speaker 2: the social media platforms make be considered editorial decisions similar 114 00:07:56,959 --> 00:08:00,720 Speaker 2: to the ones that a newspaper makes. And Justice Kagan 115 00:08:00,759 --> 00:08:09,399 Speaker 2: and her majority opinion was forthright in stating the application 116 00:08:09,519 --> 00:08:13,519 Speaker 2: of the First Amendment doesn't change based on whether or 117 00:08:13,519 --> 00:08:17,120 Speaker 2: not it's the physical versus the virtual world. It doesn't 118 00:08:17,160 --> 00:08:21,240 Speaker 2: change based on how many millions of decisions are being 119 00:08:21,240 --> 00:08:23,920 Speaker 2: made today. If the newspaper makes one hundred decisions a 120 00:08:24,000 --> 00:08:28,399 Speaker 2: day and Facebook makes a billion decisions a day, doesn't matter. 121 00:08:29,959 --> 00:08:32,879 Speaker 2: That was something that she went out of her way 122 00:08:32,919 --> 00:08:34,639 Speaker 2: to make a point that she went out of her 123 00:08:34,639 --> 00:08:37,679 Speaker 2: way to make. However, one point that I think is 124 00:08:38,720 --> 00:08:43,039 Speaker 2: underappreciated in a lot of the analysis, and especially sort 125 00:08:43,080 --> 00:08:46,679 Speaker 2: of the more libertarian analysis celebrating the net choice decision. 126 00:08:47,399 --> 00:08:51,519 Speaker 2: Is an important footnote in Justice Kagan's majority opinion, where 127 00:08:51,519 --> 00:08:56,240 Speaker 2: she said, nothing that we're writing here is about automated 128 00:08:56,399 --> 00:09:02,320 Speaker 2: algorithmic decisions made based on user preferences. So, in other words, 129 00:09:02,440 --> 00:09:05,440 Speaker 2: when you go to YouTube dot com or Twitter or Facebook, 130 00:09:05,960 --> 00:09:09,399 Speaker 2: the vast majority of the content that you're seeing is 131 00:09:09,480 --> 00:09:15,480 Speaker 2: being purface because those companies think they have developed algorithms 132 00:09:15,840 --> 00:09:17,919 Speaker 2: that look at your preferences and sort of build a 133 00:09:17,960 --> 00:09:20,919 Speaker 2: profile of you and show you content that they think 134 00:09:20,919 --> 00:09:26,279 Speaker 2: you're going to like, rather than moderating algorithms, Rather than 135 00:09:26,480 --> 00:09:29,759 Speaker 2: rather than automated algorithms that are taking content down because 136 00:09:29,759 --> 00:09:34,519 Speaker 2: it's racist, offensive, whatever, you know, whatever it might be, 137 00:09:36,320 --> 00:09:41,200 Speaker 2: They those algorithms, algorithms based on user preference are actually 138 00:09:41,279 --> 00:09:45,000 Speaker 2: not covered in this decision, And I think that's interesting, 139 00:09:45,080 --> 00:09:47,799 Speaker 2: and I think it opens the door for not just 140 00:09:47,919 --> 00:09:52,080 Speaker 2: future litigation, but also future laws and some laws that 141 00:09:52,120 --> 00:09:56,639 Speaker 2: have been passed in states already that are kind of 142 00:09:57,320 --> 00:10:02,000 Speaker 2: targeting the algorithmic design. I think the Court is at 143 00:10:02,080 --> 00:10:05,080 Speaker 2: least opening up a door to laws like that. We'll 144 00:10:05,120 --> 00:10:08,360 Speaker 2: see how open the door is. But there's at least 145 00:10:08,399 --> 00:10:10,639 Speaker 2: a path. I think the. 146 00:10:10,720 --> 00:10:13,440 Speaker 1: Argument in all of this as well, and there are 147 00:10:13,440 --> 00:10:16,759 Speaker 1: many arguments in this, but one essential argument I think 148 00:10:16,960 --> 00:10:24,240 Speaker 1: is that what happens if the platform, the editorial platform 149 00:10:24,320 --> 00:10:27,799 Speaker 1: so to speak in this case, is so large and 150 00:10:28,000 --> 00:10:36,200 Speaker 1: encompassing that it overshadows the other outlets of information, news 151 00:10:36,279 --> 00:10:41,519 Speaker 1: outlets in particulars. Let's face it, more people are getting 152 00:10:41,919 --> 00:10:48,720 Speaker 1: their information from X and Facebook and other, you know, 153 00:10:48,799 --> 00:10:52,840 Speaker 1: big tech outlets than they are from newspapers. That's something 154 00:10:52,840 --> 00:10:57,440 Speaker 1: that obviously has changed over the last generation in this country, 155 00:10:58,120 --> 00:11:02,679 Speaker 1: and there is no sign of that changing back. So 156 00:11:03,279 --> 00:11:05,240 Speaker 1: the genie is out of the bottle. The sort of 157 00:11:05,279 --> 00:11:11,120 Speaker 1: protections that the big tech has had on the editorial 158 00:11:11,240 --> 00:11:18,200 Speaker 1: side of things. Maybe ultimately the argument goes too much 159 00:11:18,320 --> 00:11:21,799 Speaker 1: because in essence, in many ways, they're the only game 160 00:11:21,840 --> 00:11:26,519 Speaker 1: in town. Is that a consideration in all of the 161 00:11:26,679 --> 00:11:29,759 Speaker 1: arguments before the Supreme Court and the lower courts. 162 00:11:30,320 --> 00:11:37,039 Speaker 2: Yes, and in fact a not dissenting opinion concurring opinion 163 00:11:38,320 --> 00:11:44,320 Speaker 2: by the sort of conservative justices. The three most conservative 164 00:11:44,399 --> 00:11:50,720 Speaker 2: justices Gorsich, Alito and Clarence Thomas. They wrote an opinion 165 00:11:50,960 --> 00:11:55,000 Speaker 2: that was very much willing to entertain this idea that 166 00:11:55,000 --> 00:11:59,080 Speaker 2: the social media platforms have a level of dominance over 167 00:11:59,159 --> 00:12:02,600 Speaker 2: discourse that we haven't really seen before in American history, 168 00:12:02,960 --> 00:12:07,039 Speaker 2: and that therefore something like a common carrier framework for 169 00:12:07,159 --> 00:12:10,440 Speaker 2: regulating them might be appropriate. It might be appropriate to 170 00:12:10,440 --> 00:12:13,440 Speaker 2: think of them in that way. I guess as a 171 00:12:13,480 --> 00:12:19,080 Speaker 2: policy analyst, the way I look at that is and 172 00:12:19,440 --> 00:12:21,879 Speaker 2: as a free speech advocate more than I am a 173 00:12:21,919 --> 00:12:26,000 Speaker 2: policy analyst, right, That's very important to me. I don't 174 00:12:26,000 --> 00:12:29,360 Speaker 2: love the way that Facebook, Google, and for a long time, 175 00:12:29,360 --> 00:12:32,919 Speaker 2: Twitter and some of these other companies have stewarded their platforms. 176 00:12:34,000 --> 00:12:36,320 Speaker 2: I think they really should have even though they weren't 177 00:12:36,399 --> 00:12:41,399 Speaker 2: under a legal obligation to follow the First Amendment, I 178 00:12:41,440 --> 00:12:43,720 Speaker 2: think they should have. I think they should have understood 179 00:12:43,720 --> 00:12:47,799 Speaker 2: that they had a moral obbligation as an American company 180 00:12:47,840 --> 00:12:51,840 Speaker 2: to do that, and they did, and I find that 181 00:12:51,919 --> 00:12:55,720 Speaker 2: to be a shame. I think it's really hurt them 182 00:12:56,960 --> 00:12:59,799 Speaker 2: in terms of their reputations, not just with policymakers but 183 00:12:59,840 --> 00:13:02,519 Speaker 2: with broader public. I think that what Elon Musk is 184 00:13:02,519 --> 00:13:05,399 Speaker 2: doing with Twitter is really interesting, and that he is 185 00:13:05,480 --> 00:13:10,039 Speaker 2: trying to be more of a First Amendment guided platform, 186 00:13:10,440 --> 00:13:14,039 Speaker 2: and I hope that we see markets kind of try 187 00:13:14,080 --> 00:13:19,440 Speaker 2: to guide the social media platforms toward that toward that outcome. 188 00:13:19,840 --> 00:13:23,919 Speaker 2: But what I would say about the Common Carrier frameworks 189 00:13:23,919 --> 00:13:28,480 Speaker 2: for regulation and similar ideas as a policy matter is 190 00:13:28,519 --> 00:13:31,519 Speaker 2: that if you're not crazy about these companies and their 191 00:13:31,600 --> 00:13:35,720 Speaker 2: level of power, Common Carrier is a double edged sword, 192 00:13:35,799 --> 00:13:39,480 Speaker 2: because yes, it allows government to exert more control over 193 00:13:39,480 --> 00:13:42,000 Speaker 2: them that they otherwise wouldn't be able to. It also 194 00:13:42,159 --> 00:13:45,399 Speaker 2: guarantees that they're locked in forever, and nothing is forever 195 00:13:45,480 --> 00:13:48,440 Speaker 2: in technology. It feels like the social media platforms have 196 00:13:48,480 --> 00:13:51,120 Speaker 2: been dominant forever and that they will be dominant forever. 197 00:13:51,639 --> 00:13:57,200 Speaker 2: But Microsoft seemed like a insurmountable monopoly with ninety five 198 00:13:57,279 --> 00:14:01,879 Speaker 2: percent of the computer market share really not that long ago. 199 00:14:02,000 --> 00:14:04,320 Speaker 2: You know, I was ten when that was the case. 200 00:14:06,320 --> 00:14:12,919 Speaker 2: These companies are powerful, but they can be competed with, 201 00:14:13,039 --> 00:14:15,600 Speaker 2: and more importantly than being competed with, they can be 202 00:14:16,799 --> 00:14:20,000 Speaker 2: the entire paradigm can change in technology and we might 203 00:14:20,039 --> 00:14:22,080 Speaker 2: be living You know, what I write about all most 204 00:14:22,080 --> 00:14:24,200 Speaker 2: of my day is ai we might be living in 205 00:14:24,279 --> 00:14:26,919 Speaker 2: a time when just such a change is happening. So 206 00:14:26,960 --> 00:14:29,519 Speaker 2: it seems to me like, right now is actually the 207 00:14:29,600 --> 00:14:31,879 Speaker 2: time where we really don't want to lock anything in place. 208 00:14:31,919 --> 00:14:35,200 Speaker 2: If we're not happy with the status quo. Major regulations 209 00:14:35,240 --> 00:14:38,759 Speaker 2: have a tendency of locking dynamics in place, and if 210 00:14:38,799 --> 00:14:41,159 Speaker 2: we really want the status quo to change, maybe we 211 00:14:41,200 --> 00:14:43,919 Speaker 2: should give the next few years a shot and sort 212 00:14:43,919 --> 00:14:48,279 Speaker 2: of see how things play out next. 213 00:14:48,320 --> 00:14:52,000 Speaker 3: Time anyone says bodenomics is working, here's what you tell them. 214 00:14:52,039 --> 00:14:54,840 Speaker 3: The Watch Dout on Wall Street podcast with Chris Markowski. 215 00:14:54,919 --> 00:14:57,759 Speaker 3: Every day Chris helps unpack the connection between politics and 216 00:14:57,759 --> 00:15:00,879 Speaker 3: the economy and how it affects your wallet. Percent of 217 00:15:00,919 --> 00:15:03,679 Speaker 3: all tax revenue in June went to paying off interest 218 00:15:03,720 --> 00:15:06,039 Speaker 3: on our national debt. We spent more on interest than 219 00:15:06,080 --> 00:15:09,840 Speaker 3: social security, health and human services, and our own national security. 220 00:15:09,879 --> 00:15:11,919 Speaker 3: Whether it's happening in DC or down on Wall Street, 221 00:15:11,960 --> 00:15:13,159 Speaker 3: it's affecting you financially. 222 00:15:13,240 --> 00:15:13,759 Speaker 1: Be informed. 223 00:15:13,840 --> 00:15:15,879 Speaker 3: Check out the Watchdout on Wall Street podcast with Chris 224 00:15:16,000 --> 00:15:19,000 Speaker 3: mccowski on Apple, Spotify, or wherever you get your podcasts. 225 00:15:22,000 --> 00:15:24,600 Speaker 1: Well, you're absolutely right that everything is subject to change. 226 00:15:24,759 --> 00:15:29,960 Speaker 1: I remember, many many moons ago that atari that was 227 00:15:30,039 --> 00:15:33,679 Speaker 1: the system to beat, and guess what it was beaten, 228 00:15:35,360 --> 00:15:39,279 Speaker 1: beaten badly Pong could only compete for so long, and 229 00:15:39,320 --> 00:15:44,240 Speaker 1: then people wanted more than Pong. I guess is ultimately 230 00:15:44,320 --> 00:15:46,759 Speaker 1: the question. And so I knew as you were talking 231 00:15:46,799 --> 00:15:50,639 Speaker 1: about fre free speech and policy issues. I knew as 232 00:15:50,679 --> 00:15:53,799 Speaker 1: you explain that there was going to be a butt involved, 233 00:15:54,679 --> 00:15:58,840 Speaker 1: and I certainly understand it. So your argument is, again 234 00:15:59,320 --> 00:16:02,840 Speaker 1: the market place will well, let me take that back. 235 00:16:03,919 --> 00:16:07,360 Speaker 1: Obviously there's a market marketplace consideration in here as to 236 00:16:07,639 --> 00:16:12,519 Speaker 1: the marketplace. Do you believe that after all of the 237 00:16:12,639 --> 00:16:18,480 Speaker 1: bad press and there still should be some more accountability 238 00:16:18,559 --> 00:16:21,000 Speaker 1: I think in the press of what big tech has done. 239 00:16:21,639 --> 00:16:26,120 Speaker 1: But that said, after all of the bad press, do 240 00:16:26,240 --> 00:16:32,440 Speaker 1: you think that these mega big tech giants will change 241 00:16:32,480 --> 00:16:38,720 Speaker 1: their policies somehow to be more First Amendment friendly given 242 00:16:38,799 --> 00:16:43,240 Speaker 1: that that's what the marketplace is screaming about? Or is 243 00:16:43,320 --> 00:16:45,600 Speaker 1: the marketplace actually screaming about that. 244 00:16:47,200 --> 00:16:50,159 Speaker 2: I think it is. I think it's something that's going 245 00:16:50,159 --> 00:16:54,080 Speaker 2: to happen slowly. These companies, you know, especially Google, Google 246 00:16:54,120 --> 00:16:56,519 Speaker 2: these days is not known. They were once a dynamic, 247 00:16:56,679 --> 00:17:02,480 Speaker 2: fast moving capitalists, you know, Hyena, Not so much anymore. 248 00:17:02,919 --> 00:17:06,160 Speaker 2: They're they're viewed by many people in the valley is 249 00:17:06,279 --> 00:17:09,440 Speaker 2: kind of where good ideas go to die. You know, 250 00:17:09,759 --> 00:17:12,000 Speaker 2: that might not be true. That's not necessarily my view. 251 00:17:12,039 --> 00:17:13,759 Speaker 2: But but a lot of people would say that Google 252 00:17:13,759 --> 00:17:18,240 Speaker 2: moves very slowly, so we'll see. I would say, you know, 253 00:17:18,279 --> 00:17:22,519 Speaker 2: you've certainly seen Meta move in the direction uh, in 254 00:17:22,559 --> 00:17:27,359 Speaker 2: this kind of direction. Obviously, Twitter x under under Elon 255 00:17:27,440 --> 00:17:31,279 Speaker 2: Musk has done. So we've seen a flourishing you know. 256 00:17:31,440 --> 00:17:34,279 Speaker 2: My I've built my platform on substack, which is a 257 00:17:34,319 --> 00:17:36,559 Speaker 2: little different. It's it's never going to be as big 258 00:17:36,599 --> 00:17:40,480 Speaker 2: as a big social media platform, but that's a that's 259 00:17:40,480 --> 00:17:43,119 Speaker 2: a great you know, there's no censorship really to speak 260 00:17:43,119 --> 00:17:47,119 Speaker 2: of on substack. Google and YouTube are the big question. 261 00:17:47,799 --> 00:17:50,599 Speaker 2: YouTube is how a lot of especially young people consume 262 00:17:51,119 --> 00:17:53,519 Speaker 2: almost all of the information they receive. They spend a 263 00:17:53,599 --> 00:17:57,920 Speaker 2: huge amount of their time on YouTube. I think Google 264 00:17:58,000 --> 00:18:00,559 Speaker 2: is learning the hard way that their in turn culture 265 00:18:00,759 --> 00:18:05,480 Speaker 2: is not very appealing to uh, to most Americans. They 266 00:18:05,519 --> 00:18:08,599 Speaker 2: had an AI model, a large language model like chat 267 00:18:08,599 --> 00:18:12,440 Speaker 2: GPT that came out a couple of months ago called Gemini, 268 00:18:13,279 --> 00:18:17,079 Speaker 2: which the academic community everybody was like, oh, this is 269 00:18:17,200 --> 00:18:20,680 Speaker 2: very architecturally interesting. There's lots of technical innovation here. It 270 00:18:20,759 --> 00:18:26,640 Speaker 2: hits the consumer marketplace and immediately it's discovered, Oh, this 271 00:18:26,680 --> 00:18:31,480 Speaker 2: thing is, this thing is unbelievably politically skewed and just 272 00:18:31,559 --> 00:18:34,880 Speaker 2: I mean not you know, beyond even politically skewed, just stupid, right, 273 00:18:35,359 --> 00:18:40,880 Speaker 2: politically made very yeah, yeah, a very smart language model 274 00:18:41,160 --> 00:18:45,960 Speaker 2: made stupid and dumb because of trying by by trying 275 00:18:46,039 --> 00:18:48,319 Speaker 2: to be I should I should say stuid dum, I 276 00:18:48,319 --> 00:18:54,079 Speaker 2: should say stupid and wrong, oftentimes in an effort to 277 00:18:54,079 --> 00:18:56,920 Speaker 2: make it not racist, which is sort of you know, 278 00:18:57,119 --> 00:18:59,880 Speaker 2: exactly what the college system does uh to uh to 279 00:19:00,039 --> 00:19:03,000 Speaker 2: young people all over the place, kind of just courses 280 00:19:03,359 --> 00:19:06,359 Speaker 2: the quality of their thought of young people's thoughts. That's 281 00:19:06,359 --> 00:19:08,720 Speaker 2: what happened with Gemini, and I think that blew up 282 00:19:08,720 --> 00:19:12,359 Speaker 2: in Google space, right, and I think that was probably 283 00:19:12,400 --> 00:19:14,240 Speaker 2: a come to Jesus moment for them. I think it 284 00:19:14,400 --> 00:19:18,319 Speaker 2: very well may have been. So we'll see, we will see, 285 00:19:19,200 --> 00:19:22,880 Speaker 2: but I'm hopeful, I'm hopeful that there will be some 286 00:19:23,039 --> 00:19:24,119 Speaker 2: change in the right direction. 287 00:19:25,720 --> 00:19:28,759 Speaker 1: Dean ball research fellow with the Mercada centered on the 288 00:19:28,759 --> 00:19:33,519 Speaker 1: Supreme courts and net choice rulings, as we note, rulings 289 00:19:33,640 --> 00:19:40,119 Speaker 1: that are marked with a substantial uncertainty. That is what 290 00:19:40,240 --> 00:19:45,559 Speaker 1: Dean has said in writing on the subject in our 291 00:19:45,599 --> 00:19:48,920 Speaker 1: conversation today, and absolutely, I think if you look at 292 00:19:48,920 --> 00:19:54,880 Speaker 1: this these decisions, there remains to be a number of questions, 293 00:19:55,079 --> 00:19:58,720 Speaker 1: a number of questions need to be answered on that front. 294 00:19:58,960 --> 00:20:01,160 Speaker 1: I want to go back to what you just mentioned, 295 00:20:01,319 --> 00:20:07,880 Speaker 1: you know, the indoctrination of a generation, and that's what 296 00:20:08,000 --> 00:20:11,400 Speaker 1: worries me. You see the polling out there where you 297 00:20:11,519 --> 00:20:16,319 Speaker 1: have people, young people of a certain age, who prefer 298 00:20:17,319 --> 00:20:22,440 Speaker 1: kindness over free speech, right, that's what they have been 299 00:20:22,720 --> 00:20:29,920 Speaker 1: trained to think. That opposing viewpoints that may cause conflict 300 00:20:30,119 --> 00:20:35,039 Speaker 1: or may hurt someone's feelings, even that that should not 301 00:20:35,279 --> 00:20:40,920 Speaker 1: those viewpoints should not be protected. It's pretty clear that 302 00:20:42,400 --> 00:20:44,640 Speaker 1: a lot of big tech or the biggest of the 303 00:20:44,640 --> 00:20:50,160 Speaker 1: big tech players emulated that idea, and that is why 304 00:20:50,200 --> 00:20:52,640 Speaker 1: we're in the place that we're in. And so the 305 00:20:52,720 --> 00:20:59,920 Speaker 1: question is there any hope that these players will change, 306 00:21:00,079 --> 00:21:04,920 Speaker 1: because that's what the next generation is demanding they do. 307 00:21:07,720 --> 00:21:10,720 Speaker 2: I think there is hope, and I'll tell you why. 308 00:21:11,759 --> 00:21:16,000 Speaker 2: I absolutely hear everything you're saying, and trust me, not 309 00:21:16,079 --> 00:21:18,799 Speaker 2: just the social media platforms, but so many other forces 310 00:21:18,839 --> 00:21:21,559 Speaker 2: in our society that have done this to young people. 311 00:21:22,279 --> 00:21:24,720 Speaker 2: Is one of the few things that makes me legitimately angry. 312 00:21:25,279 --> 00:21:27,079 Speaker 2: I try not to get mad about the things that 313 00:21:27,119 --> 00:21:29,920 Speaker 2: I write about in public policy because they're beyond my control, 314 00:21:29,960 --> 00:21:35,240 Speaker 2: but this is one that does. And you know, I 315 00:21:35,279 --> 00:21:40,640 Speaker 2: think again, I'm so heartened by what we've seen on 316 00:21:41,240 --> 00:21:45,240 Speaker 2: Twitter in the last two years, where you know, I 317 00:21:45,240 --> 00:21:48,000 Speaker 2: don't agree with every single decision Elon Musk has made 318 00:21:48,000 --> 00:21:51,960 Speaker 2: in running that company, But the net result of Twitter 319 00:21:52,039 --> 00:21:55,079 Speaker 2: is that it is a social force for the First Amendment. 320 00:21:55,400 --> 00:21:58,799 Speaker 2: It is showing why the First Amendment is valuable, and 321 00:21:58,839 --> 00:22:02,279 Speaker 2: it's showing it to young people during their formative years. 322 00:22:02,480 --> 00:22:06,160 Speaker 2: I think, you know, when you're sixteen, the idea that oh, 323 00:22:06,200 --> 00:22:08,920 Speaker 2: we shouldn't say mean things, we should only say nice things, 324 00:22:08,960 --> 00:22:11,599 Speaker 2: and you know, you kind of don't think about the 325 00:22:11,599 --> 00:22:14,599 Speaker 2: complexity of like how do you adjudicate what's true and 326 00:22:14,640 --> 00:22:17,440 Speaker 2: what's not true, or what's mean and what's nice? You know, 327 00:22:17,799 --> 00:22:20,039 Speaker 2: But then as you get older you do. And so 328 00:22:20,119 --> 00:22:23,720 Speaker 2: I think that Twitter will be this place where people 329 00:22:23,759 --> 00:22:26,799 Speaker 2: will kind of learn and see the differences and sort 330 00:22:26,799 --> 00:22:32,480 Speaker 2: of have a force for pushback. But that being said, 331 00:22:34,039 --> 00:22:36,240 Speaker 2: I think it's incumbent upon you know, I'm not that 332 00:22:36,359 --> 00:22:43,279 Speaker 2: much older than the generation Z. But but I think 333 00:22:43,279 --> 00:22:46,759 Speaker 2: it's incumbent upon all older people to demonstrate to younger 334 00:22:46,759 --> 00:22:51,720 Speaker 2: people really to lead by example and to demonstrate what 335 00:22:52,880 --> 00:22:55,720 Speaker 2: why we have the First Amendment? Why is it number one? 336 00:22:56,200 --> 00:22:59,440 Speaker 2: And why does it say importantly for the net choice decisions. 337 00:22:59,480 --> 00:23:03,599 Speaker 2: I think Congress shall make no law. It doesn't say 338 00:23:03,640 --> 00:23:06,759 Speaker 2: some laws. It says no law. And I think that's 339 00:23:06,799 --> 00:23:10,920 Speaker 2: that's very important for me. So I'm I am hopeful, 340 00:23:10,960 --> 00:23:13,960 Speaker 2: I remain I remain hopeful, and I will say, like 341 00:23:14,000 --> 00:23:17,799 Speaker 2: the Gemini, you know, the Gemini incident with Google, the 342 00:23:17,839 --> 00:23:20,640 Speaker 2: only reason that blew up was because of Twitter, and 343 00:23:20,720 --> 00:23:23,920 Speaker 2: Twitter of three years ago might well have censored that. 344 00:23:24,279 --> 00:23:26,119 Speaker 2: I think about that all the time. There's so many 345 00:23:26,160 --> 00:23:30,559 Speaker 2: controversies today where I think to myself, would this be 346 00:23:30,680 --> 00:23:32,920 Speaker 2: something people are talking about on the pages of the 347 00:23:32,920 --> 00:23:36,759 Speaker 2: New York Times if Elon Musk didn't own Twitter, and 348 00:23:37,519 --> 00:23:40,160 Speaker 2: that in and of itself is a powerful force. 349 00:23:41,799 --> 00:23:44,000 Speaker 1: That's a very important point I want to get to 350 00:23:44,079 --> 00:23:47,319 Speaker 1: in just a moment that you just mentioned that again, 351 00:23:47,480 --> 00:23:53,440 Speaker 1: Congress shall make no laws that disrupt or interfere in 352 00:23:53,839 --> 00:23:59,799 Speaker 1: infringe upon the right of citizens. For that first and primary, 353 00:24:01,400 --> 00:24:06,240 Speaker 1: But before I do that, because in so many cases 354 00:24:06,240 --> 00:24:09,799 Speaker 1: we've seen of late Congress doesn't even get the chance 355 00:24:10,319 --> 00:24:15,279 Speaker 1: to make the law. It is we have unelected bureaucrats, 356 00:24:15,279 --> 00:24:16,519 Speaker 1: and I want to get to that in just a moment. 357 00:24:16,640 --> 00:24:20,319 Speaker 1: I think this is an interesting comment from Justice Thomas 358 00:24:21,000 --> 00:24:25,000 Speaker 1: in the ruling. Out of the sea of variegated and 359 00:24:25,079 --> 00:24:31,039 Speaker 1: complex functions that platforms perform, the Court plucks out to 360 00:24:31,960 --> 00:24:37,119 Speaker 1: Facebook's newsfeed and YouTube's homepage and declares that they may 361 00:24:37,160 --> 00:24:41,240 Speaker 1: be protected by the First Amendment. The Court does so 362 00:24:41,440 --> 00:24:47,440 Speaker 1: on a record that it itself describes as incomplete and underdeveloped, 363 00:24:47,960 --> 00:24:52,839 Speaker 1: and by sidestepping several pressing factual and legal questions. As 364 00:24:53,039 --> 00:24:58,359 Speaker 1: Justice Alito explains, the Court's approach is both unwarranted and mistaken. 365 00:24:59,000 --> 00:25:00,759 Speaker 1: What do you think about that? I mean, that's that's 366 00:25:01,000 --> 00:25:05,319 Speaker 1: typical Clarence Thomas language, very assertive, very forceful, and to 367 00:25:05,359 --> 00:25:10,160 Speaker 1: the point. But you do have the majority it appears 368 00:25:10,200 --> 00:25:15,720 Speaker 1: seeming to side or seeming the argument is the majority 369 00:25:15,720 --> 00:25:19,920 Speaker 1: playing favorites here before the issue is actually decided. 370 00:25:21,519 --> 00:25:26,559 Speaker 2: Yeah, I think that's I think Justice Thomas is, you know, 371 00:25:26,640 --> 00:25:31,880 Speaker 2: his words there are very well taken. To me. There 372 00:25:31,960 --> 00:25:33,839 Speaker 2: is a little bit of irony in the fact that 373 00:25:33,880 --> 00:25:37,839 Speaker 2: the majority opinion like in a stylized way, is basically saying, 374 00:25:38,880 --> 00:25:40,960 Speaker 2: you guys didn't think about this enough, and you only 375 00:25:41,000 --> 00:25:45,200 Speaker 2: focused on one or two things, and then let me 376 00:25:45,240 --> 00:25:48,400 Speaker 2: write fifty pages about those one or two things. Right, 377 00:25:49,599 --> 00:25:52,759 Speaker 2: There is certainly an irony to that. I think it 378 00:25:52,960 --> 00:25:55,920 Speaker 2: has wes to do. Frankly, this is just again my 379 00:25:56,000 --> 00:26:00,759 Speaker 2: own personal speculation here. I think it might have to 380 00:26:00,799 --> 00:26:04,160 Speaker 2: do somewhat less with the merits of the net choice case. 381 00:26:04,200 --> 00:26:06,039 Speaker 2: It's not unrelated, of course, to the merits of the 382 00:26:06,200 --> 00:26:08,440 Speaker 2: net choice case. But I think it is more about 383 00:26:08,960 --> 00:26:14,240 Speaker 2: very publicly, frankly, spanking the Fifth Circuit, because that's what 384 00:26:14,359 --> 00:26:17,480 Speaker 2: I mean. Kagan. Justice Kagan came back to the Fifth 385 00:26:17,480 --> 00:26:21,000 Speaker 2: Circuit is dead wrong about X Y Z over and 386 00:26:21,039 --> 00:26:23,799 Speaker 2: over and over again, and I think it's really trying 387 00:26:23,880 --> 00:26:29,960 Speaker 2: to correct that so that that they don't have to 388 00:26:30,000 --> 00:26:34,279 Speaker 2: have this fight again. But in not just case Justice 389 00:26:34,319 --> 00:26:38,799 Speaker 2: Kagan's opinion, but also in the dessense from Justice Barrett 390 00:26:38,839 --> 00:26:41,400 Speaker 2: and Justice Alito's are not the sense. I keep saying 391 00:26:41,440 --> 00:26:44,079 Speaker 2: that they felt like the sense, but they really work concurrences. 392 00:26:44,839 --> 00:26:51,279 Speaker 2: Justice Barrett's concurrence and Justice Alito's concurrence. They pointed out 393 00:26:51,319 --> 00:26:55,759 Speaker 2: all these complexities about things that matter to me. In particular, 394 00:26:55,839 --> 00:27:00,599 Speaker 2: AI said, you know, are these if these automated moderation 395 00:27:00,680 --> 00:27:03,400 Speaker 2: decisions are being made by a large language model, does 396 00:27:03,440 --> 00:27:07,680 Speaker 2: a large language model have expression rights under the Constitution? 397 00:27:08,640 --> 00:27:10,680 Speaker 2: Do we at least think about that? Is a ligne 398 00:27:10,920 --> 00:27:17,200 Speaker 2: from Justice Alito's concurrence. And I think that's exactly right. Absolutely, 399 00:27:17,240 --> 00:27:20,920 Speaker 2: you should be thinking about that one hundred percent. And 400 00:27:20,960 --> 00:27:25,119 Speaker 2: there are many things that were not considered both by 401 00:27:25,720 --> 00:27:28,039 Speaker 2: in the lower courts but also in the majority opinion, 402 00:27:28,039 --> 00:27:30,640 Speaker 2: which I think does have some irony. 403 00:27:30,359 --> 00:27:34,279 Speaker 1: To it, as I noted a moment ago, as we 404 00:27:34,319 --> 00:27:39,640 Speaker 1: talk about the whole structure of these arguments, what we 405 00:27:39,720 --> 00:27:42,839 Speaker 1: have seen and we've seen it before, but we have 406 00:27:43,319 --> 00:27:46,319 Speaker 1: seen it at I think an alarming rate over the 407 00:27:46,400 --> 00:27:50,680 Speaker 1: last several years in this country. And that is and 408 00:27:50,759 --> 00:27:54,160 Speaker 1: I think this speaks to another Supreme Court decision in 409 00:27:54,200 --> 00:28:00,000 Speaker 1: the overturning of Chevron. But you know, the administrative state 410 00:28:00,039 --> 00:28:04,279 Speaker 1: eight the power in some cases of the deep state, 411 00:28:05,119 --> 00:28:10,119 Speaker 1: as we have seen very clearly documented the federal government 412 00:28:10,759 --> 00:28:14,640 Speaker 1: working to suppress speech, working with these big tech players 413 00:28:14,640 --> 00:28:18,799 Speaker 1: we've been talking about to suppress speech. Now I know 414 00:28:18,960 --> 00:28:23,720 Speaker 1: these cases specifically dealt with the social media players. But 415 00:28:24,599 --> 00:28:31,079 Speaker 1: it is hard to or it should be very difficult 416 00:28:32,160 --> 00:28:35,799 Speaker 1: to come to a judgment or a decision without the 417 00:28:35,799 --> 00:28:41,279 Speaker 1: context of the you know, the iron fist of the 418 00:28:41,319 --> 00:28:47,240 Speaker 1: federal government, particularly unelected bureaucrats operating in the shadows to 419 00:28:47,279 --> 00:28:48,119 Speaker 1: suppress speech. 420 00:28:49,279 --> 00:28:53,960 Speaker 2: Yes, yes, absolutely, And I think there's a really interesting 421 00:28:54,039 --> 00:28:58,440 Speaker 2: tension between the Murphy versus Missouri case, which I can 422 00:28:58,440 --> 00:29:03,079 Speaker 2: talk about if you want choice and Chevron. So I'll 423 00:29:03,519 --> 00:29:07,680 Speaker 2: just the Chevron decision if your if your listeners, uh 424 00:29:08,039 --> 00:29:12,440 Speaker 2: don't know, uh, basically or the lower Right decision was 425 00:29:12,440 --> 00:29:15,119 Speaker 2: the name of the case it struck down. It overruled 426 00:29:15,119 --> 00:29:18,960 Speaker 2: another case called Chefron Chevron versus n R d C 427 00:29:19,400 --> 00:29:23,000 Speaker 2: from the eighties. And in the Chevron case, what they 428 00:29:23,799 --> 00:29:28,000 Speaker 2: the there was a legal doctrine developed. It's called Chevron deference, 429 00:29:28,319 --> 00:29:32,359 Speaker 2: where when an agency interprets an ambiguity in a law 430 00:29:32,440 --> 00:29:37,359 Speaker 2: that Congress has passed, the courts have to defer to 431 00:29:37,400 --> 00:29:44,160 Speaker 2: that agency's interpretation if the interpretation is quote reasonable. That 432 00:29:44,240 --> 00:29:47,680 Speaker 2: led to it was actually, interestingly enough, a kind of 433 00:29:47,680 --> 00:29:50,240 Speaker 2: a conservative thing at the time, and it was done 434 00:29:50,359 --> 00:29:53,839 Speaker 2: during a period when Reagan, when President Reagan was trying 435 00:29:53,880 --> 00:29:57,720 Speaker 2: to deregulate a lot of a lot of things, and 436 00:29:57,920 --> 00:30:01,400 Speaker 2: agencies were taking more modest into repretations of their powers. 437 00:30:02,440 --> 00:30:05,559 Speaker 2: But what it in the long term, as these things 438 00:30:05,640 --> 00:30:09,640 Speaker 2: often do, what it turned into was a huge expansion 439 00:30:10,119 --> 00:30:13,440 Speaker 2: of agency power without Congress granting it through new laws. 440 00:30:13,920 --> 00:30:17,960 Speaker 2: And the Supreme Court overturned that they had already been 441 00:30:18,720 --> 00:30:21,559 Speaker 2: It had been dying. Chevron deference had been dying for 442 00:30:21,599 --> 00:30:24,960 Speaker 2: a decade at the Supreme Court, but they finally they 443 00:30:25,319 --> 00:30:30,559 Speaker 2: finally killed it last week with the decision in Loper Right. 444 00:30:31,880 --> 00:30:36,519 Speaker 2: And I think it's a very impactful case in the 445 00:30:36,559 --> 00:30:39,240 Speaker 2: long term, will take some time to see. But then 446 00:30:40,000 --> 00:30:45,240 Speaker 2: ironically right the Court said, there was this big defense 447 00:30:45,279 --> 00:30:48,400 Speaker 2: in the lower Right decision. We're overturning Chevron because sports 448 00:30:48,440 --> 00:30:53,200 Speaker 2: are the people who decide how to resolve statutory ambiguities, 449 00:30:53,240 --> 00:30:59,279 Speaker 2: not agencies. Well simultaneous, well simultaneously punting on a case 450 00:31:00,279 --> 00:31:05,960 Speaker 2: where the government was collaborating with social media companies to 451 00:31:06,039 --> 00:31:09,720 Speaker 2: suppress American speech. And we know that that's not disputed, 452 00:31:10,200 --> 00:31:12,640 Speaker 2: that's in the record. This is nobody in the Supreme 453 00:31:12,680 --> 00:31:15,839 Speaker 2: Court would dispute that that was in essence happening. Their 454 00:31:16,599 --> 00:31:21,319 Speaker 2: reason for punting on the cases were technical and not 455 00:31:21,359 --> 00:31:22,400 Speaker 2: really all that interesting. 456 00:31:22,680 --> 00:31:26,160 Speaker 1: Yes, standing questions, which is yeah, which is what we've 457 00:31:26,519 --> 00:31:29,400 Speaker 1: we've seen in a number of cases this session lacking, 458 00:31:29,680 --> 00:31:34,799 Speaker 1: lacking standing. But again, the the the arguments for that 459 00:31:35,359 --> 00:31:40,359 Speaker 1: under underpinning the Mirtha v. Missouri case, as you know, 460 00:31:41,160 --> 00:31:44,960 Speaker 1: clearly documented the many instances where the and and and 461 00:31:45,039 --> 00:31:47,359 Speaker 1: Since that case was filed, we've had even. 462 00:31:47,160 --> 00:31:52,599 Speaker 2: More absolutely and I think if if the court, you know, 463 00:31:52,880 --> 00:31:56,960 Speaker 2: I think the Chevron decision is very likely over time. 464 00:31:57,039 --> 00:32:00,000 Speaker 2: My friend at the R. Street Institute, a guy named 465 00:32:00,000 --> 00:32:03,319 Speaker 2: Adam Feher, has made this point before that you know 466 00:32:03,359 --> 00:32:06,519 Speaker 2: what Chevron is likely to do is drive agencies more 467 00:32:06,519 --> 00:32:09,599 Speaker 2: and more towards what's called soft law. So instead of 468 00:32:09,680 --> 00:32:13,440 Speaker 2: even doing new interpretations of laws that you create as 469 00:32:13,480 --> 00:32:16,759 Speaker 2: formal rules, instead of doing that, we're just going to 470 00:32:16,799 --> 00:32:23,000 Speaker 2: start doing a bunch of informal stuff, issuing best practices, documents, guidance, 471 00:32:23,359 --> 00:32:26,559 Speaker 2: making speeches. You know, Lena Khan might go to an 472 00:32:26,559 --> 00:32:28,960 Speaker 2: event and make a speech and say I really don't 473 00:32:29,000 --> 00:32:31,680 Speaker 2: like Google, and Google stock price goes down by eight percent, 474 00:32:31,960 --> 00:32:34,240 Speaker 2: or I really don't like Northrop Grummen, or whoever it 475 00:32:34,319 --> 00:32:39,160 Speaker 2: might be and one of those forms of soft regulation 476 00:32:39,400 --> 00:32:43,839 Speaker 2: is exactly what we saw in Murphy v. Missouri, with 477 00:32:44,759 --> 00:32:48,480 Speaker 2: government agencies, the White House and other law enforcement agencies 478 00:32:48,480 --> 00:32:54,160 Speaker 2: as well, emailing the social media companies and just basically 479 00:32:54,200 --> 00:32:58,759 Speaker 2: threatening them with regulation, threatening them with retaliation of various kinds, 480 00:32:58,839 --> 00:33:03,319 Speaker 2: implicitly indexlicitly to do, you know, in telling them to 481 00:33:03,359 --> 00:33:06,039 Speaker 2: do certain things. We'll see more of that. And if 482 00:33:06,079 --> 00:33:09,200 Speaker 2: that stuff is just going to evade the eye of 483 00:33:09,240 --> 00:33:12,640 Speaker 2: the law, we have a problem on our hands. So 484 00:33:13,519 --> 00:33:16,160 Speaker 2: I find it's there's a tension here where the court 485 00:33:16,200 --> 00:33:19,640 Speaker 2: is saying we're going to take this on, but then 486 00:33:19,680 --> 00:33:23,240 Speaker 2: they're also allowing this job owning in Murphy v. Missouri 487 00:33:24,599 --> 00:33:31,079 Speaker 2: to happen unabated, and there is a fundamental tension there. 488 00:33:32,119 --> 00:33:36,079 Speaker 1: Dear colleague, it would be unfortunate if anything bad happened 489 00:33:36,079 --> 00:33:39,359 Speaker 1: to you or your company. I mean that that's basically 490 00:33:39,480 --> 00:33:42,240 Speaker 1: what we have in place with the you know, the 491 00:33:42,880 --> 00:33:47,200 Speaker 1: soft legislation. But you know, this is the argument that 492 00:33:47,319 --> 00:33:54,119 Speaker 1: keeps coming up unbelievably from you know, big government supporters, 493 00:33:54,799 --> 00:33:59,519 Speaker 1: big government advocates, the left in general, is that the 494 00:33:59,559 --> 00:34:04,680 Speaker 1: government has speech rights that it does that it simply 495 00:34:04,920 --> 00:34:08,280 Speaker 1: does not have you know, these Bill of Rights, the 496 00:34:08,360 --> 00:34:12,119 Speaker 1: Constitution in general, as we know, as we're looking at 497 00:34:12,679 --> 00:34:16,760 Speaker 1: celebrating to nearly two hundred and fifty years as a country, 498 00:34:17,360 --> 00:34:25,039 Speaker 1: the Constitution was not created to support the government the 499 00:34:25,079 --> 00:34:29,920 Speaker 1: government's rights. It was created to support the people's rights 500 00:34:29,960 --> 00:34:33,559 Speaker 1: and the rights of the people who ultimately have control 501 00:34:34,280 --> 00:34:38,199 Speaker 1: over the government. And I think I think it's lost. 502 00:34:38,239 --> 00:34:42,199 Speaker 1: Do you believe that it's lost in the argument that 503 00:34:42,239 --> 00:34:46,079 Speaker 1: we're hearing, and we've heard it predominantly as the argument 504 00:34:46,159 --> 00:34:49,599 Speaker 1: on the left for the last several years in this country. 505 00:34:50,079 --> 00:34:53,679 Speaker 1: It's even in their briefings to the Supreme Court that 506 00:34:53,800 --> 00:34:57,920 Speaker 1: somehow the government has speech rights in all of this. 507 00:35:00,119 --> 00:35:04,559 Speaker 2: Yes, absolutely, and it's it's uh. I find it ironic 508 00:35:04,599 --> 00:35:07,039 Speaker 2: because one way to think about the Bill of Rights, 509 00:35:07,079 --> 00:35:09,840 Speaker 2: at least the first amendment, is that it is regulation 510 00:35:10,280 --> 00:35:13,119 Speaker 2: imposed by the people on the government. It's one of 511 00:35:13,119 --> 00:35:16,199 Speaker 2: the few items of regulation that we impose on them, 512 00:35:16,920 --> 00:35:22,280 Speaker 2: and the people who want to expand government hate it. 513 00:35:21,519 --> 00:35:26,119 Speaker 2: And it's sort of like, yeah, I'm not shocked. Now 514 00:35:26,320 --> 00:35:28,079 Speaker 2: you understand how the rest of us feel all the 515 00:35:28,119 --> 00:35:32,199 Speaker 2: time at least I do you know about about regulation? 516 00:35:32,599 --> 00:35:35,840 Speaker 2: Certainly a lot of corporations feel that way. Yeah, no, 517 00:35:35,960 --> 00:35:38,840 Speaker 2: I think that's true, and I think that you know, 518 00:35:39,400 --> 00:35:41,639 Speaker 2: there was an up ed by Tim Tim Blue in 519 00:35:41,679 --> 00:35:44,639 Speaker 2: the New York Times yesterday with the headline the First 520 00:35:44,639 --> 00:35:46,639 Speaker 2: Amendment is out of control, and you know, one of 521 00:35:46,679 --> 00:35:49,280 Speaker 2: his arguments is that the First Amendment is preventing government 522 00:35:49,320 --> 00:35:53,320 Speaker 2: from doing its job. And when I hear things. 523 00:35:53,119 --> 00:35:56,480 Speaker 1: Like that, that is just that. Can we take a moment, 524 00:35:57,320 --> 00:36:01,960 Speaker 1: have a moment of silence for how stunning that argument is. 525 00:36:02,039 --> 00:36:06,199 Speaker 1: It's just and nauseating too. I don't want to forget nauseating, 526 00:36:06,199 --> 00:36:09,599 Speaker 1: but you're right. I mean, wow, that is a remarkable statement. 527 00:36:10,719 --> 00:36:14,639 Speaker 2: It is, it is, and it's just. It goes to 528 00:36:14,679 --> 00:36:17,239 Speaker 2: show I mean, someone like Tim wou knows better. And 529 00:36:17,440 --> 00:36:20,960 Speaker 2: you know, for someone like that, I would invite, you know, 530 00:36:21,239 --> 00:36:24,960 Speaker 2: people who believe that that are law professors to practice 531 00:36:25,000 --> 00:36:28,360 Speaker 2: law in Europe where they don't have these right but 532 00:36:29,360 --> 00:36:31,719 Speaker 2: to see this percolating down, you know. To return to 533 00:36:31,760 --> 00:36:35,320 Speaker 2: the point about the younger generation, I think one of 534 00:36:34,360 --> 00:36:39,920 Speaker 2: the most profound problems that we have as a country 535 00:36:40,039 --> 00:36:42,360 Speaker 2: is that we are we do a very bad job 536 00:36:42,400 --> 00:36:45,280 Speaker 2: of telling a story about ourselves and imparting that to 537 00:36:45,400 --> 00:36:48,920 Speaker 2: younger people, and that's called civics. Fundamentally, that's called civics. 538 00:36:49,159 --> 00:36:52,519 Speaker 2: And I think we do just a really mediocre job 539 00:36:52,519 --> 00:36:56,920 Speaker 2: of it, and you know, I hope we can do 540 00:36:57,000 --> 00:36:58,440 Speaker 2: better over time. 541 00:36:59,480 --> 00:37:03,440 Speaker 1: I think I think in many cases doing better is 542 00:37:03,519 --> 00:37:07,159 Speaker 1: exactly what we need. As we wrap up our conversation, 543 00:37:07,519 --> 00:37:09,079 Speaker 1: let me ask you then, and you brought it up 544 00:37:09,159 --> 00:37:15,239 Speaker 1: Murphy va. Missouri very much. I think in many different 545 00:37:15,280 --> 00:37:20,159 Speaker 1: ways tied into the net choice ruling. Where does all 546 00:37:20,199 --> 00:37:24,000 Speaker 1: of this go from here? In both cases we have 547 00:37:25,000 --> 00:37:30,559 Speaker 1: remanded back to the lower courts to deal with the cleanup, 548 00:37:30,719 --> 00:37:32,840 Speaker 1: if you will. Where do you see all of this 549 00:37:33,000 --> 00:37:35,280 Speaker 1: going in the years ahead? 550 00:37:36,599 --> 00:37:42,320 Speaker 2: Yeah, so Murphy the majority Missouri. It was actually a 551 00:37:42,360 --> 00:37:46,480 Speaker 2: preliminary injunction, which means that it happened that went to 552 00:37:46,519 --> 00:37:50,280 Speaker 2: the Supreme Course at the beginning of its sort of 553 00:37:50,360 --> 00:37:54,079 Speaker 2: legal journey. And now we'll go back to the district 554 00:37:54,079 --> 00:37:58,639 Speaker 2: court that it came from, and it'll go through everything 555 00:37:58,679 --> 00:38:00,559 Speaker 2: that a federal case goes through. So it'll go through 556 00:38:00,599 --> 00:38:05,000 Speaker 2: fact finding, discovery, and there'll be years of that ahead, 557 00:38:05,039 --> 00:38:07,760 Speaker 2: and it would not surprise me to see that return, 558 00:38:08,320 --> 00:38:10,760 Speaker 2: to see it return to the courts at some point 559 00:38:11,239 --> 00:38:13,960 Speaker 2: in the future. So I think there's more to come 560 00:38:14,039 --> 00:38:17,960 Speaker 2: on almost so often is the case with the Court, 561 00:38:18,599 --> 00:38:20,559 Speaker 2: More to come in several years. We learned a lot, 562 00:38:20,639 --> 00:38:23,599 Speaker 2: and also there's a lot more questions and will answer 563 00:38:23,599 --> 00:38:24,880 Speaker 2: them in several years. 564 00:38:25,280 --> 00:38:28,199 Speaker 1: So stay tuned. Film at eleven, as they used to say. 565 00:38:28,880 --> 00:38:30,960 Speaker 1: If I still say that, because I don't believe they 566 00:38:31,039 --> 00:38:37,239 Speaker 1: use film anymore, which that statement ultimately dates me. It's 567 00:38:37,639 --> 00:38:45,599 Speaker 1: so many statements unfortunately these days, do very interesting all things. 568 00:38:45,920 --> 00:38:48,679 Speaker 1: As we know, this is the first right, it is 569 00:38:48,719 --> 00:38:50,800 Speaker 1: the primary right in the Bill of Rights, and it 570 00:38:50,880 --> 00:38:55,800 Speaker 1: is so for a reason. Free speech, a free press, 571 00:38:56,360 --> 00:39:01,079 Speaker 1: free thought, free conscience all time, and the ability to 572 00:39:01,119 --> 00:39:08,719 Speaker 1: freely assemble so critical, so very essential to upholding the 573 00:39:08,800 --> 00:39:13,239 Speaker 1: republic envisioned by our founders, the republic that I hope 574 00:39:13,239 --> 00:39:19,480 Speaker 1: the vast majority of Americans still cherish and want to continue, 575 00:39:20,199 --> 00:39:23,519 Speaker 1: But sometimes I have my doubts. Thanks to my guest today, 576 00:39:24,599 --> 00:39:28,199 Speaker 1: and thank you so much again Dean, for taking time 577 00:39:29,639 --> 00:39:34,920 Speaker 1: and really focusing on the overall impacts of these decisions 578 00:39:35,199 --> 00:39:39,960 Speaker 1: what they ultimately mean. My guest today, Dean Ball, research 579 00:39:40,039 --> 00:39:44,039 Speaker 1: fellow with the Mercada Center, on the Supreme Court's Net 580 00:39:44,159 --> 00:39:45,480 Speaker 1: choice ruling. 581 00:39:46,599 --> 00:39:47,639 Speaker 2: Thanks so much for having me. 582 00:39:48,119 --> 00:39:51,880 Speaker 1: Absolutely you've been listening to another edition of The Federalist 583 00:39:51,960 --> 00:39:55,400 Speaker 1: Radio Hour. I'm Matt Kittle, Senior correspondent at the Federalist. 584 00:39:55,800 --> 00:39:59,400 Speaker 1: We'll be back soon with more. Until then, stay lovers 585 00:39:59,440 --> 00:40:01,920 Speaker 1: of freedom and anxious for the frame. 586 00:40:09,119 --> 00:40:14,760 Speaker 2: I heard the fame voice the Reason, and then it 587 00:40:14,920 --> 00:40:15,880 Speaker 2: faded away.