Speaker 1: Welcome to sco Discast, a project of the Federalist Society
Speaker 1: for Law and Public Policy Studies. Our contributors joined us
Speaker 1: from around the country to bring you expert commentary on
Speaker 1: US Supreme Court cases as they are argued and the
Speaker 1: decisions are issued. The Federalist Society takes no position on
Speaker 1: particular legal or public policy issues. All expressions are those
Speaker 1: of the speaker. Hello, and welcome to scot Discast. I'm
Speaker 1: your host, Kyle hammernis On, behalf of the Faculty division
Speaker 1: of the Federalist Society. Today we have a moderated discussion
Speaker 1: on Murthy versus Missouri, in which the Supreme Court issued
Speaker 1: a six ' to three decision on June twenty sixth,
Speaker 1: twenty twenty four. It is my honor to introduce our
Speaker 1: moderator today, Brent score Up. Brent is a legal fellow
Speaker 1: at the Cato Institute's Center for Constitutional Studies, and with
Speaker 1: that I like to turn things over to Brent to
Speaker 1: introduce our guests.
Speaker 2: Well, thank you toal Society for hosting this conversation. It's
Speaker 2: uh in the Mercy case is as Justice Alitos and
Speaker 2: descent when one of the biggest free speech cases the
Speaker 2: Supreme Court has taken up in a while, and uh,
Speaker 2: it's great, see a lot of a lot of interest
Speaker 2: in it. So I'll introduce to the panelists and then
Speaker 2: then we'll go.
Speaker 3: To discussion in alphabetic order.
Speaker 2: Cordin Martin Barthold is Tech Freedom's Internet Policy Council and
Speaker 2: Director of Litigation. He received his j d from UC
Speaker 2: Berkeley School of Law. He clerked for the Honorable Stephen D.
Speaker 2: Mary Day at the Middle District of Florida and the
Speaker 2: Honorable Robert H.
Speaker 3: Cleveland in the Eastern District of Michigan.
Speaker 2: After his clerkships, Corbyn was in so and later partner
Speaker 2: at the Los Angeles office of Brown George Ross LP.
Speaker 2: And he has since joined the Public Interest Law World,
Speaker 2: and we're glad he has. Josh Devine is a Solicitor
Speaker 2: General of Missouri, where he oversees the office's appellate and
Speaker 2: special litigation divisions.
Speaker 3: He received his jd from Yale Law School, and.
Speaker 2: He clerked for Supreme Court well first Eleventh Circuit Judge
Speaker 2: William Pryor.
Speaker 3: And then at the Supreme Court for Justice Thomas.
Speaker 2: Before serving as Solicitor General, he was chief counsel to
Speaker 2: US Senator Josh Holly, and finally, jennye Unis is litigation
Speaker 2: council for the New Civil Liberties Alliance. She holds a
Speaker 2: jd from NYU School of Law. She spent the first
Speaker 2: part of her career as an appellate public defender in
Speaker 2: New York City, including arguing in several cases before the
Speaker 2: New York State Court of Appeals. So I'd like to
Speaker 2: go first to Janine and provide the audience, viewers, listeners
Speaker 2: who perhaps weren't to wear the Murcy case before last week,
Speaker 2: but you know, follow the Supreme Court and have an
Speaker 2: interest in free speech issues. You and NCLA represent a
Speaker 2: few clients in this case, and so if you take
Speaker 2: a few minutes, please cover the facts in this case,
Speaker 2: your clients, as well as the District Court and Fifth
Speaker 2: Circuit decisions in the case.
Speaker 4: Thank you so much for having me. Well, I might
Speaker 4: need more than a few minutes. I'll be as concise
Speaker 4: as possible.
Speaker 3: Yeah, yeah, no takes.
Speaker 5: So.
Speaker 4: We represented four individual plaintiffs. Probably the two most people
Speaker 4: know are Jay Bodicharia and Martin Kuldorf, who were co
Speaker 4: authors of the Great Barrington Declaration, which was a declaration
Speaker 4: that has showed lockdowns, basically saying that they were more
Speaker 4: harmful to society than they were helpful, and they're epidemiologists
Speaker 4: at Harvard and Stanford. We also represented Aaron Kerriotti as
Speaker 4: a psychiatrist who declined to get the COVID vaccine because
Speaker 4: he had natural immunity and lost his professorship as a result,
Speaker 4: and Jill Hines, a health freedom worker in Louisiana, and
Speaker 4: their core allegation was that they were censored on social media,
Speaker 4: but not essentially because of the of the platform's content
Speaker 4: moderation policies, but because the government had inserted itself into
Speaker 4: COVID related censorship. Now, I also want to clarify there's
Speaker 4: another plaintiff in the case, Jim Hoff, who we didn't represent,
Speaker 4: who was alleging interference government interference with his speech that
Speaker 4: was more about the twenty twenty election in the Hunter
Speaker 4: Biden laptop, since the government was also involved in trying
Speaker 4: to get those topics suppressed on social media. So the
Speaker 4: facts in this case, it was a twenty thousand page record,
Speaker 4: even though this was just up on appeal from a
Speaker 4: preliminary in junction, so it's hard to summarize them briefly.
Speaker 5: But essentially the White House.
Speaker 4: Various Asian these such as the CDC, the Cybersecurity and
Speaker 4: Infrastructure Security Agency which is housed within DHS, the FBI,
Speaker 4: had in various ways tried to influence the companies in
Speaker 4: order to censor disfavored speech. When it came to the
Speaker 4: White House, there was often a lot of coercion going on.
Speaker 4: There were direct threats private and public to try to
Speaker 4: repeal Section two thirties protections, which, as most people know,
Speaker 4: the companies rely on.
Speaker 5: In order to.
Speaker 4: Not have to be held liable for what people say
Speaker 4: on their platforms, which the platforms need in order to
Speaker 4: function as social media where people can just post whenever
Speaker 4: they want.
Speaker 5: Also, there were threats to look.
Speaker 4: At antitrust provisions, and the platforms had reason to fear
Speaker 4: that the administration was actually going to do this. Some
Speaker 4: of the conduct was more collaborative. For instance, when it
Speaker 4: came to the CDC, Facebook and other social media companies
Speaker 4: were kind of working in tandem with the government saying like,
Speaker 4: we're going to take these kind of posts down. The
Speaker 4: CDC would send examples of posts that should be taken
Speaker 4: down of flagging you know, so called vaccine misinformation mass misinformation, that.
Speaker 6: Kind of thing.
Speaker 4: I think it's really important to point out that although
Speaker 4: the First Amendment protects, you know, so called misinformation even
Speaker 4: false speech, our plaintiffs were not seeing things that were false.
Speaker 4: They were saying mostly true things, I would say, perhaps almost.
Speaker 5: Entirely true things.
Speaker 4: And Jay Bodichari and Martin Couldorf are two of the
Speaker 4: top epidemiologists in the world, and they were being censored
Speaker 4: at the behest of the Biden administration on topics on
Speaker 4: the areas of their expertise. So I think this case
Speaker 4: really highlights why we have a First Amendment and why
Speaker 4: we don't like, why do we don't allow the government
Speaker 4: to be involved in this kind of thing or in
Speaker 4: suppressing viewpoints that it disagrees with. So the core allegations
Speaker 4: some additional allegations were raised in the complaint, but the core,
Speaker 4: especially on the preliminary junction, the core complaint was First
Speaker 4: Amendment violations, and the idea was that the government was
Speaker 4: sort of instrumentalizing these private companies to accomplish its censorship aims,
Speaker 4: and that was effectively a First Amendment violation because the
Speaker 4: government can't use private industry to accomplish what it can't directly.
Speaker 4: So the District Court in the Western District of Louisiana
Speaker 4: found for us almost entirely, found that the plaintiffs had
Speaker 4: standing and found that it was well this was on
Speaker 4: a preliminary injunction, but that the government had likely violated
Speaker 4: their First Amendment rights and that the harm was irreparable.
Speaker 4: So granted the preliminary in junction. It was mostly upheld
Speaker 4: by the Fifth Circuit. The Fifth Circuit kicked out a
Speaker 4: couple of the defendants, so they found there wasn't enough
Speaker 4: evidence that Niad and Ih, so mostly we're talking about
Speaker 4: doctor Fauci, that he was actually involved in this censorship,
Speaker 4: so he was not in the injunction.
Speaker 5: That importantly.
Speaker 4: Also, the district court denied government's motion to dismiss the complaint,
Speaker 4: so the case in the district court is still live
Speaker 4: despite the fact that the Supreme Court, uh reverse the
Speaker 4: grant of the preliminary injunction.
Speaker 2: Yeah, thank you for that, and yeah, apologies a little
Speaker 2: little housekeeping. Uh, you know, it's first of all, you know,
Speaker 2: it's great we have you know, the two people who
Speaker 2: represented parties in this case.
Speaker 3: Which is great.
Speaker 1: Uh.
Speaker 2: And I want to thank Soliciener General divine for for
Speaker 2: taking time out of the business schedule, I'm sure for
Speaker 2: for coming Next, I'd like to turn to Corbin.
Speaker 3: And uh And and ask for.
Speaker 2: An assessment of the District Court and in the circuit opinions.
Speaker 2: I know I listen to podcasts from you, and why
Speaker 2: I reached out to you. You have some good reservations
Speaker 2: about the nature of the injunction, the breadth of the injunction,
Speaker 2: and I think you may have had issues with the
Speaker 2: standing as well. So and obviously the Spring Court found
Speaker 2: the standing issues the most most salient here. So so Corbyn,
Speaker 2: for you your assessment of the District Court, district opinion
Speaker 2: and also the Spring Court opinion.
Speaker 3: Just how they came down how they did.
Speaker 6: Sure, okay. So as with the first question, is that
Speaker 6: there's a lot there. It was it was pretty clear
Speaker 6: to me how things were probably going to go with
Speaker 6: the rest of the case from July fourth, twenty twenty three,
Speaker 6: that's the day the District Court issued its opinion. The
Speaker 6: District Court took what it called a bird's eye view
Speaker 6: of traceability and so I kind of glossed over the
Speaker 6: actual record. I didn't really make an attempt to link
Speaker 6: any government conduct with any specific act of content moderation.
Speaker 6: More importantly, though, the court presented a factual analysis that
Speaker 6: was so riddled with airs and fabrications that it was
Speaker 6: clearly going to be useless to any reviewing court. Also,
Speaker 6: the judge bought into the censorship Industrial Complex narrative in
Speaker 6: which the Stanford Internet ob Observatory was supposedly a puppet
Speaker 6: of the government through SISA instead of a group doing
Speaker 6: its own independent research and advocacy and let's not forget
Speaker 6: exercising its own First Amendment rights. So those problems trickled
Speaker 6: up to the Supreme Court. The government had to say
Speaker 6: in a footnote in its reply that it couldn't possibly
Speaker 6: respond to all the inaccuracies that were floating around, which
Speaker 6: was true. Justice Soda Mayor said an oral argument that
Speaker 6: she couldn't untangle all the inaccuracies in the planet of
Speaker 6: its brief. She said, quote, you know, I have such
Speaker 6: a problem with your brief, counselor you omit information that
Speaker 6: changed is the context of some of your claims. You
Speaker 6: attribute things to people who it didn't happen to dot
Speaker 6: dot dot. I don't know what to make of all this.
Speaker 6: And at the oral argument, the SG of Louisiana. You know,
Speaker 6: I'm afraid he didn't really help matters. He kind of
Speaker 6: bounced around. The Justice has struggled to understand him. Justice
Speaker 6: Barrett said she wasn't even sure what his argument was.
Speaker 6: He said, he you know, I'm a First Amendment purist,
Speaker 6: and then he wasn't able to present the scope of
Speaker 6: the categories of unprotected speech correctly when talking with Justice Kagan.
Speaker 6: So the opinion didn't end up really being a surprise.
Speaker 6: At footnote four, the justices, the majority wrote the Fifth
Speaker 6: Circuit relied on the District Court's factual findings, many of
Speaker 6: which unfortunately appear to be clearly erroneous. And again, I
Speaker 6: mean that's true. Throughout our discussion, it's important to remember
Speaker 6: that the district courts were thoroughly botched the factual record. Here,
Speaker 6: the majority noted that neither the District Court nor the
Speaker 6: Court of Appeals made any specific causation findings with respect
Speaker 6: to any discreet instances of content moderation. It noted that
Speaker 6: Justice Alito and Descent basically had to construct a theory
Speaker 6: of causation on his own, and the Majority, for its part,
Speaker 6: basically just refused to do that. It trotted out the
Speaker 6: old line about how judges aren't pigs hunting for truffles
Speaker 6: in the record. So in the end Justice Alito could
Speaker 6: formulate his descent kind of only by boiling things down extensively.
Speaker 6: He bypassed almost all of the sort of dish gallop
Speaker 6: of facts and allegations that had been thrown around below,
Speaker 6: and so the censorship industrial complex stuff fell by the wayside.
Speaker 6: We didn't hear anything about sort of like significant encouragement
Speaker 6: or entanglement. He had to kind of construct for himself
Speaker 6: a Bantam Books analysis that was nothing like what the
Speaker 6: plaintiffs had presented at oral argument, where they'd argue that
Speaker 6: sort of any request by the government to take something
Speaker 6: down crosses the line. So while job voting is a
Speaker 6: really concerning issue, and I hope we can all kind
Speaker 6: of agree on that through the discussion, my take was
Speaker 6: this just wasn't really a good case to decide much
Speaker 6: of anything. Now moving to the Supreme Court decisions, you know,
Speaker 6: once the case got narrowed down to have the majority
Speaker 6: and the dissent frame things, I do think there's reasonable
Speaker 6: disagreement over the proper outcome. You had sort of this
Speaker 6: jousting with different Supreme Court standing decisions, and maybe we
Speaker 6: can get into that more. You know, Justice Alito certainly
Speaker 6: had a point that the Court should try to apply
Speaker 6: it standing doctrine consistently. But what you basically had was agreement,
Speaker 6: like at least at a high level, that the government
Speaker 6: exerted pressure on the platforms to moderate content relating to
Speaker 6: COVID nineteen and the twenty twenty election. But the majority
Speaker 6: said that it had to work quote to untangle the
Speaker 6: mass of the plaintiff's injuries and government communications, and once
Speaker 6: it did that, it just couldn't find any solid links. So,
Speaker 6: you know, give one example, we heard about the Great
Speaker 6: Barrington Declaration, but the majority found that the platforms had
Speaker 6: taken action against that before there was really any communication
Speaker 6: between the platforms and the government. So I think the
Speaker 6: ultimate take home is the majority wasn't willing to engage
Speaker 6: in sort of this imaginative reconstruction of the vast record
Speaker 6: that was plocked in a pile before it. That was
Speaker 6: kind of my biggest take home.
Speaker 3: Thank you for that.
Speaker 2: Next, like to turn to the general divine and if
Speaker 2: you could talk about I guess I guess first of all,
Speaker 2: talk about Missouri's interest in the case.
Speaker 3: Uh for bid a little unusual cy of state.
Speaker 2: I was glad to see Missouri take an interest in
Speaker 2: the case, but talk about the state's interests, and also
Speaker 2: I follow this case and there was uh if you
Speaker 2: could also talk about some of the depositions and evidence, uh,
Speaker 2: you know that that you have turned up in this case,
Speaker 2: and then I'll probably follow up as well.
Speaker 5: Yeah, so I'll take it as an order. So Missouri's
Speaker 5: interest in this case. One of the theories of standing
Speaker 5: that we pressed is that, you know, there's this long
Speaker 5: line of cases from the by the Spring Court that
Speaker 5: the Spring Court doesn't really discuss very much in this opinion,
Speaker 5: which is that the states have an interest in hearing
Speaker 5: from their citizens. You've got you've got a bunch of
Speaker 5: different cases terminiel O Guarnieri that all discussed that the
Speaker 5: whole you know, part of the purpose of the First
Speaker 5: Amendment and part of the purpose of free speech is
Speaker 5: to enable states to really hear from their citizens so
Speaker 5: that they can be responsive to the needs and concerns
Speaker 5: of their citizens. So that's one of the theories of
Speaker 5: standing we advance here, and that's a definite state interest.
Speaker 5: The Spreme Court didn't deny that. Instead, what it said
Speaker 5: is that you know that, well, you need to be
Speaker 5: a little bit more specific and the type of thing
Speaker 5: that you're wanting to hear. The problem, of course, is,
Speaker 5: you know, when things are being censored, nobody really knows
Speaker 5: what this universe is. You know, that's the whole point.
Speaker 5: It's being censored, and so you don't know exactly what's
Speaker 5: going on. You don't exactly know what you're unable to
Speaker 5: hear at that point, and so the Spreme Court's kind
Speaker 5: of set up this impossible standard from the perspective of
Speaker 5: the listener's ability to identify the things that they would
Speaker 5: like to hear, but that they're unable to. The second
Speaker 5: thing that Spring Court does is it kind of just
Speaker 5: it pretty much ignores about twenty years of precedent with
Speaker 5: respect to the ability of states to bring what are
Speaker 5: called parents potrai lawsuits against the federal government. So you've
Speaker 5: got these you've got these cases from the nineties and
Speaker 5: early two thousands where the Supreme Court allows states to
Speaker 5: do that, and basically a parents patriay action just means you're,
Speaker 5: in essence, asserting you're as certain that there's a very
Speaker 5: widespread harm to the people of Missouri to the people
Speaker 5: of the state. And what you're essentially doing is you're
Speaker 5: certain that this this harm has become so widespread that
Speaker 5: it has in fact become an injury to the state itself.
Speaker 5: And the Spring Court allowed this in a nineteen ninety
Speaker 5: five case. The Supreme Court allowed this in a two
Speaker 5: thousand and seven case. And what they did here is
Speaker 5: they dug up dicta from a nineteen sixties case and
Speaker 5: they said and they just cite that and say, well,
Speaker 5: this is you know, the states can't bring parents potry
Speaker 5: suits against the federal government. But if you actually look
Speaker 5: at that, that's dealing with situations where where the state
Speaker 5: isn't actually asserting its own kind of harm, it's purely
Speaker 5: asserting the third party harms of other individuals. In every
Speaker 5: single case where a state has a its own theory
Speaker 5: of harm, the US Supreme Court has allowed the state
Speaker 5: to bring a parents potry action. And the Supreme Court
Speaker 5: just completely misses that entire line of doctrine, doesn't discuss
Speaker 5: it at all. And so I think we've got a
Speaker 5: very unusual parents potry decision from the Supreme Court on
Speaker 5: this issue that really just doesn't wrestle with that fundamental
Speaker 5: difference and what what gives us states the ability and
Speaker 5: the interest to bring a suit like this. I want
Speaker 5: to I want to respond to a couple of things
Speaker 5: that Corbyn said. I think we've got a large amount
Speaker 5: of no no surprise that you know one of the
Speaker 5: individuals represent these individuals, Uh, these pointiffs disagrees with what
Speaker 5: Corbin said. Let let me let me just let me
Speaker 5: let me just leave it at this, which is that
Speaker 5: you know, nobody really dispeedes at the Supreme Court. Nobody
Speaker 5: really disputes that work. There were very severe First Amendment
Speaker 5: of violations that were going on. I mean, the majority opinion,
Speaker 5: for example, discusses at one point like, yeah, look like
Speaker 5: that pressure from the federal government actually altered the policies
Speaker 5: of Facebook and Twitter and these other organizations. But then
Speaker 5: the Supreme Course says, but you know, that's a past violation.
Speaker 5: You can't necessarily get prospective relief from that. But they
Speaker 5: don't deny that they were blatant violations. The government had
Speaker 5: insinuated itself into this atmosphere and had actually physically changed
Speaker 5: the policies of Facebook and other organizations to induce further
Speaker 5: future suppression. But I think just from a causation standpoint,
Speaker 5: if you look at the facts, if you look at
Speaker 5: what happened in July twenty twenty one, you see a rapid,
Speaker 5: much more aggressive posture from the White House, from the
Speaker 5: Surgeon General, from some of the other defendants in July
Speaker 5: twenty twenty one, much more aggressive, and then you find
Speaker 5: an uptick in censorship after that. So it's never been
Speaker 5: our position that, you know, there hasn't been some censorship
Speaker 5: or you know, suppression or content moderation or whatever term
Speaker 5: you want to use. It's never been our position that
Speaker 5: there hasn't been some of that already going on by
Speaker 5: the platforms. But what we identified are you know, you've
Speaker 5: got some of these discrete events July twenty twenty one,
Speaker 5: huge increase in aggression from the White House, and then
Speaker 5: you also see an increase in content moderation or suppression
Speaker 5: or censorship. And it doesn't take a genius to be
Speaker 5: able to draw that inference there. Now, look, you know
Speaker 5: you can't draw certainty inference there, but the doctrine doesn't
Speaker 5: require any kind of certainty. It requires a likelihood. And
Speaker 5: so you know, I do want to very strongly to speed,
Speaker 5: the idea that we didn't establish causation, that we didn't
Speaker 5: do anything like that. I think the Supreme Court basically
Speaker 5: looked at the record and you know, refused to draw
Speaker 5: a single inference in our favor, which was different from
Speaker 5: the district court and different from the Court of Appeals.
Speaker 2: I'll ask a follow up on that, just something that
Speaker 2: jumped out in the opinion, and then I'll ask each
Speaker 2: of you for things that jumped out in the opinion
Speaker 2: in or arguments itself. But just find a sister general
Speaker 2: Divines comment. So the majorities about traceability. The majority statement said,
Speaker 2: the primary weakness in this record, this is a quote
Speaker 2: in the record of past restrictions, is the lack of
Speaker 2: specific causation findings with respect to any discrete instance of
Speaker 2: content moderation end quote.
Speaker 3: So maybe, Janina, a person go to you. I'm not
Speaker 3: an expert on standing.
Speaker 2: Frankly, that seems like a very high standard to establish
Speaker 2: standing that you need to show in the first amment
Speaker 2: of context specific causation findings or speak with respect to
Speaker 2: any discrete instance of content or moderation. Your response to
Speaker 2: that statement from the court, Yeah.
Speaker 4: It seems to me that the Court's basically requiring that
Speaker 4: you show that a specific post was censored because of
Speaker 4: the government, which seems very very hard to do, and.
Speaker 5: I'll use So this was actually an.
Speaker 4: Example that came out later through a congressional investigation, but
Speaker 4: it's a very clear one. There were internal emails from
Speaker 4: Meta that were revealed as a result of this investigation
Speaker 4: where Nick Clegg, who's an executive there, wrote to another
Speaker 4: employee and said, can you remind me why we censored
Speaker 4: the lab leak theory, and the other employees says, because
Speaker 4: we were under pressure from the White House, we shouldn't
Speaker 4: have done it.
Speaker 5: Unfortunately, that was not for the.
Speaker 4: Record because it was came out after the Fifth Circuit briefing,
Speaker 4: and there's a lot of stuff in the record that
Speaker 4: is very similar to that. That's just the most stark example,
Speaker 4: so I think it crystallizes it. But that is very
Speaker 4: clear that this entire theory, this entire narrative, this entire
Speaker 4: line of thought was censored on social media because of
Speaker 4: the government. And I think even there, the court is
Speaker 4: insinuating that you would have to show that your specific
Speaker 4: post was censored because the government had called you out
Speaker 4: or named you.
Speaker 5: I don't know who's going to be able to do that.
Speaker 4: There may be two people I can think of, RFK
Speaker 4: and Alex Bearnson, who are specifically singled out by government
Speaker 4: officials by name. I also want to respond to if
Speaker 4: I made one thing that Corbin said about the factual inaccuracies.
Speaker 4: I really wanted to speed that this was a twenty
Speaker 4: thousand page record the district court might have gotten, you know,
Speaker 4: said a couple of things not exactly the way I
Speaker 4: would have characterized them. There was one email from Rob
Speaker 4: Flaherty where Flerty was using very colorful language to demand
Speaker 4: the takedown of I think a parody account of the
Speaker 4: President's granddaughter. And it wasn't about COVID misinformation, but we
Speaker 4: had actually not represented that, misrepresented that, and I think
Speaker 4: that was what was insinuated. We were showing it as
Speaker 4: part of a pattern of the government's treating these companies
Speaker 4: who sort of subservient. So I think the idea, you know,
Speaker 4: I don't know what inaccuracy is anyone's talking about, and
Speaker 4: if Corbin would like to elaborate and be happy to respond,
Speaker 4: but I think that the lower courts were actually really
Speaker 4: understood the facts well, and I would say I don't
Speaker 4: make the Supreme Court read the record. It was clear
Speaker 4: to me that the Descent had a much greater, much
Speaker 4: better grasp of the facts. I guess, did I respond
Speaker 4: to your question?
Speaker 3: Yeah, yeah, you did.
Speaker 2: And I'll with that, I'll turn to Corbin. Don't want
Speaker 2: to put you on the spot. Well, the last thing
Speaker 2: I want to do, I also want you to, maybe
Speaker 2: I'm being hyperbolic, I want you to walk me off
Speaker 2: the ledge that this this traceability standard as I read it,
Speaker 2: seems to say you've got to show you know, you've
Speaker 2: got to show the email, where the getting where the
Speaker 2: government official said take Brent Corp's post down, And it
Speaker 2: seems like short of that, it's pretty difficult.
Speaker 5: Yeah.
Speaker 3: Feel free to respond to to anything that's been said.
Speaker 6: Yeah, I mean, the last thing I want to do
Speaker 6: is take up our whole hour with Janine and me
Speaker 6: arguing the record. So you know, the twenty two million
Speaker 6: tweets versus four thousand and is a problem. The fabricated
Speaker 6: quotes of Renee Darresta of targeting domestic speakers, of the
Speaker 6: threat of quote legal consequences with the press. Secretary never
Speaker 6: said you have problems with talking about SISA and how
Speaker 6: the Election Integrity Partnership was actually set up. You have
Speaker 6: problems with the word targeting being used. I would recommend
Speaker 6: people take a look at Stanford's a Meekus brief in
Speaker 6: the case where they get into this. And I'm sure
Speaker 6: Janine probably has disagreements with what that brief says, but
Speaker 6: I think that brief and certainly footnote four speak for themselves.
Speaker 6: I don't think Justice Barrett would make that line lightly
Speaker 6: now hopefully to say some things that Janine will agree with.
Speaker 6: I think what we ultimately need to land on is
Speaker 6: something between the broadest possible reading of the majority opinion
Speaker 6: and the dissent, because at times the majority does I
Speaker 6: mean they never say this explicitly, but they make it
Speaker 6: sound like you need to be like named directly, and
Speaker 6: that just can't, I can't be the standard. I mean,
Speaker 6: that's highly problematic. They noted that the platforms had, you know,
Speaker 6: independent incentives to moderate content, and I have thoughts on that,
Speaker 6: but like I know this much, that cannot possibly be
Speaker 6: like a get out of jail free card. It can't
Speaker 6: be like, well, somewhere in the mix, we have an
Speaker 6: incentive and and so you know, plaintiffs lose that can't
Speaker 6: be right, Josh. You know, I think I think it's
Speaker 6: an interesting question whether the majority agrees that there was
Speaker 6: no violation. I mean, I don't think they ever say
Speaker 6: that explicitly. That's certainly not my read of the justices
Speaker 6: from the oral argument, but you're right, like they don't
Speaker 6: they don't come in on that. I think ultimately we
Speaker 6: have to kind of hope that like this opinion is.
Speaker 5: Not read broadly.
Speaker 6: They they their decision was shaped in part, I think
Speaker 6: by how it was litigated and adjudicated below.
Speaker 5: Vulo being a few months before.
Speaker 6: Maybe we should take heart that, like you know, these
Speaker 6: things are not a lot is left to be fought over.
Speaker 6: And then the last thing I just want to insert
Speaker 6: because I don't want to derail us. But I thought
Speaker 6: Josh's discussion was interesting, and I'm wondering if he has
Speaker 6: thoughts on whether maybe some of the conservative justices and
Speaker 6: the majority were like spooked by Massachusetts versus EPA, seeing
Speaker 6: like a decision that maybe all of us in the
Speaker 6: room would be see as like a stretch of what
Speaker 6: states can bring in and sue on and if that
Speaker 6: maybe derailed them, And the reason I bring that up
Speaker 6: in this answer is I think there just were a
Speaker 6: lot of hydraulic pressures on this case that might have
Speaker 6: shaped the majority opinion in ways that maybe they'll actually
Speaker 6: change course of it in future decisions.
Speaker 5: Well, so, I've been thinking about this a lot, and
Speaker 5: you know, there was a lot of coverage in the
Speaker 5: past four years since Justice Barrett was nominated of like, oh,
Speaker 5: this is the conservative court that's going to like roll
Speaker 5: back everybody's rights, blah blah blah. Like that's what you're
Speaker 5: getting from. That's what you're getting from, you know, the
Speaker 5: cottage industry, niche press that is that appears to just
Speaker 5: criticize the Supreme Court twenty four hours a day, right,
Speaker 5: Like that's kind of that's the kind of coverage you're getting.
Speaker 5: And in fact, what you get instead is, you know,
Speaker 5: a group of justices who have, for you know, their
Speaker 5: entire legal upbringing, been very, very very skeptical of standing.
Speaker 5: And so I mean that's what you that's what you've
Speaker 5: seen this year and last year and the year before
Speaker 5: is just really just ratcheting up the standing requirements in
Speaker 5: case after case after case. So Mass v. E.
Speaker 6: Pa.
Speaker 5: You know, pretty much most conservatives disagreed with that opinion.
Speaker 5: Thought it was, you know, far beyond the outer reaches
Speaker 5: of standing, and so it almost looks like they're kind
Speaker 5: of trying to self overrule some of these opinions, like
Speaker 5: I said, in the parent potry context, like they're just
Speaker 5: the Spring Court is absolutely wrong to cite that that
Speaker 5: decision and SNAP without recognizing that there are several different
Speaker 5: decisions after Snap that completely undermined that opinion with respect
Speaker 5: to parents patry. Spring Court is entirely wrong, and they're
Speaker 5: ignoring that line of precedents there. But you look at
Speaker 5: that end and then you know, same thing with the
Speaker 5: Department of Commerce. I think Justice Alito is right. I
Speaker 5: don't know how you can you know, the Department of
Speaker 5: Commerce was unanimous with respect to the standing question. New
Speaker 5: York could sue because there was a predictable effect that
Speaker 5: the census question on the or the citizenship question on
Speaker 5: the census was going to lead to reduce, you know,
Speaker 5: a reduced number of individuals filling out the census. Well,
Speaker 5: of course, it's a predictable effect that when you have
Speaker 5: this kind of government pressure, there is going to be censorship.
Speaker 5: And so I think the I think it's a similar
Speaker 5: situation where the Spreme court is kind of trying to
Speaker 5: cabin these other standing doctrines without saying so explicitly.
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