WEBVTT 1 00:00:02.439 --> 00:00:05.839 Welcome to sco Discast, a project of the Federalist Society 2 00:00:05.960 --> 00:00:09.519 for Law and Public Policy Studies. Our contributors joined us 3 00:00:09.560 --> 00:00:12.759 from around the country to bring you expert commentary on 4 00:00:12.960 --> 00:00:15.599 US Supreme Court cases as they are argued and the 5 00:00:15.679 --> 00:00:19.120 decisions are issued. The Federalist Society takes no position on 6 00:00:19.160 --> 00:00:22.960 particular legal or public policy issues. All expressions are those 7 00:00:23.000 --> 00:00:29.679 of the speaker. Hello, and welcome to scot Discast. I'm 8 00:00:29.719 --> 00:00:33.119 your host, Kyle hammernis On, behalf of the Faculty division 9 00:00:33.159 --> 00:00:37.039 of the Federalist Society. Today we have a moderated discussion 10 00:00:37.079 --> 00:00:40.359 on Murthy versus Missouri, in which the Supreme Court issued 11 00:00:40.439 --> 00:00:43.280 a six ' to three decision on June twenty sixth, 12 00:00:43.520 --> 00:00:46.920 twenty twenty four. It is my honor to introduce our 13 00:00:46.960 --> 00:00:50.920 moderator today, Brent score Up. Brent is a legal fellow 14 00:00:51.039 --> 00:00:54.880 at the Cato Institute's Center for Constitutional Studies, and with 15 00:00:54.920 --> 00:00:56.840 that I like to turn things over to Brent to 16 00:00:56.880 --> 00:00:58.079 introduce our guests. 17 00:01:06.159 --> 00:01:12.560 Well, thank you toal Society for hosting this conversation. It's 18 00:01:12.760 --> 00:01:18.359 uh in the Mercy case is as Justice Alitos and 19 00:01:18.439 --> 00:01:21.480 descent when one of the biggest free speech cases the 20 00:01:21.480 --> 00:01:24.040 Supreme Court has taken up in a while, and uh, 21 00:01:24.799 --> 00:01:27.519 it's great, see a lot of a lot of interest 22 00:01:27.560 --> 00:01:31.120 in it. So I'll introduce to the panelists and then 23 00:01:31.480 --> 00:01:32.280 then we'll go. 24 00:01:32.239 --> 00:01:36.159 To discussion in alphabetic order. 25 00:01:37.640 --> 00:01:42.000 Cordin Martin Barthold is Tech Freedom's Internet Policy Council and 26 00:01:42.079 --> 00:01:45.680 Director of Litigation. He received his j d from UC 27 00:01:45.840 --> 00:01:49.519 Berkeley School of Law. He clerked for the Honorable Stephen D. 28 00:01:50.159 --> 00:01:52.519 Mary Day at the Middle District of Florida and the 29 00:01:52.519 --> 00:01:53.959 Honorable Robert H. 30 00:01:54.280 --> 00:01:56.480 Cleveland in the Eastern District of Michigan. 31 00:01:57.120 --> 00:02:01.239 After his clerkships, Corbyn was in so and later partner 32 00:02:01.319 --> 00:02:04.200 at the Los Angeles office of Brown George Ross LP. 33 00:02:04.920 --> 00:02:09.360 And he has since joined the Public Interest Law World, 34 00:02:10.039 --> 00:02:14.680 and we're glad he has. Josh Devine is a Solicitor 35 00:02:14.759 --> 00:02:17.520 General of Missouri, where he oversees the office's appellate and 36 00:02:17.560 --> 00:02:19.080 special litigation divisions. 37 00:02:19.439 --> 00:02:22.520 He received his jd from Yale Law School, and. 38 00:02:22.759 --> 00:02:28.240 He clerked for Supreme Court well first Eleventh Circuit Judge 39 00:02:28.240 --> 00:02:29.159 William Pryor. 40 00:02:28.919 --> 00:02:31.360 And then at the Supreme Court for Justice Thomas. 41 00:02:32.439 --> 00:02:35.840 Before serving as Solicitor General, he was chief counsel to 42 00:02:36.000 --> 00:02:41.199 US Senator Josh Holly, and finally, jennye Unis is litigation 43 00:02:41.240 --> 00:02:44.560 council for the New Civil Liberties Alliance. She holds a 44 00:02:44.639 --> 00:02:47.840 jd from NYU School of Law. She spent the first 45 00:02:47.840 --> 00:02:49.919 part of her career as an appellate public defender in 46 00:02:49.919 --> 00:02:53.919 New York City, including arguing in several cases before the 47 00:02:53.960 --> 00:02:59.800 New York State Court of Appeals. So I'd like to 48 00:02:59.840 --> 00:03:07.199 go first to Janine and provide the audience, viewers, listeners 49 00:03:07.280 --> 00:03:11.680 who perhaps weren't to wear the Murcy case before last week, 50 00:03:11.800 --> 00:03:14.479 but you know, follow the Supreme Court and have an 51 00:03:14.479 --> 00:03:19.080 interest in free speech issues. You and NCLA represent a 52 00:03:19.120 --> 00:03:23.759 few clients in this case, and so if you take 53 00:03:23.800 --> 00:03:26.960 a few minutes, please cover the facts in this case, 54 00:03:27.400 --> 00:03:31.800 your clients, as well as the District Court and Fifth 55 00:03:31.800 --> 00:03:33.759 Circuit decisions in the case. 56 00:03:35.159 --> 00:03:37.639 Thank you so much for having me. Well, I might 57 00:03:37.680 --> 00:03:39.560 need more than a few minutes. I'll be as concise 58 00:03:39.560 --> 00:03:40.080 as possible. 59 00:03:40.120 --> 00:03:41.159 Yeah, yeah, no takes. 60 00:03:42.479 --> 00:03:42.599 So. 61 00:03:42.759 --> 00:03:47.000 We represented four individual plaintiffs. Probably the two most people 62 00:03:47.039 --> 00:03:49.680 know are Jay Bodicharia and Martin Kuldorf, who were co 63 00:03:49.759 --> 00:03:53.960 authors of the Great Barrington Declaration, which was a declaration 64 00:03:54.000 --> 00:03:56.360 that has showed lockdowns, basically saying that they were more 65 00:03:56.400 --> 00:04:00.000 harmful to society than they were helpful, and they're epidemiologists 66 00:04:00.039 --> 00:04:03.919 at Harvard and Stanford. We also represented Aaron Kerriotti as 67 00:04:03.879 --> 00:04:06.520 a psychiatrist who declined to get the COVID vaccine because 68 00:04:06.520 --> 00:04:10.599 he had natural immunity and lost his professorship as a result, 69 00:04:10.879 --> 00:04:13.960 and Jill Hines, a health freedom worker in Louisiana, and 70 00:04:14.000 --> 00:04:17.000 their core allegation was that they were censored on social media, 71 00:04:17.480 --> 00:04:22.120 but not essentially because of the of the platform's content 72 00:04:22.199 --> 00:04:26.199 moderation policies, but because the government had inserted itself into 73 00:04:26.360 --> 00:04:28.959 COVID related censorship. Now, I also want to clarify there's 74 00:04:28.959 --> 00:04:31.720 another plaintiff in the case, Jim Hoff, who we didn't represent, 75 00:04:31.959 --> 00:04:36.199 who was alleging interference government interference with his speech that 76 00:04:36.360 --> 00:04:39.360 was more about the twenty twenty election in the Hunter 77 00:04:39.399 --> 00:04:42.000 Biden laptop, since the government was also involved in trying 78 00:04:42.040 --> 00:04:48.120 to get those topics suppressed on social media. So the 79 00:04:48.279 --> 00:04:50.639 facts in this case, it was a twenty thousand page record, 80 00:04:50.639 --> 00:04:52.279 even though this was just up on appeal from a 81 00:04:52.319 --> 00:04:56.240 preliminary in junction, so it's hard to summarize them briefly. 82 00:04:56.279 --> 00:04:58.519 But essentially the White House. 83 00:04:59.360 --> 00:05:02.319 Various Asian these such as the CDC, the Cybersecurity and 84 00:05:02.360 --> 00:05:07.160 Infrastructure Security Agency which is housed within DHS, the FBI, 85 00:05:07.519 --> 00:05:10.560 had in various ways tried to influence the companies in 86 00:05:10.680 --> 00:05:13.680 order to censor disfavored speech. When it came to the 87 00:05:13.680 --> 00:05:15.879 White House, there was often a lot of coercion going on. 88 00:05:15.959 --> 00:05:20.800 There were direct threats private and public to try to 89 00:05:20.839 --> 00:05:23.720 repeal Section two thirties protections, which, as most people know, 90 00:05:23.759 --> 00:05:25.360 the companies rely on. 91 00:05:25.439 --> 00:05:26.160 In order to. 92 00:05:27.759 --> 00:05:29.759 Not have to be held liable for what people say 93 00:05:29.800 --> 00:05:31.839 on their platforms, which the platforms need in order to 94 00:05:31.879 --> 00:05:34.560 function as social media where people can just post whenever 95 00:05:34.600 --> 00:05:35.000 they want. 96 00:05:36.199 --> 00:05:37.639 Also, there were threats to look. 97 00:05:37.480 --> 00:05:44.240 At antitrust provisions, and the platforms had reason to fear 98 00:05:44.360 --> 00:05:46.879 that the administration was actually going to do this. Some 99 00:05:46.920 --> 00:05:49.439 of the conduct was more collaborative. For instance, when it 100 00:05:49.480 --> 00:05:53.800 came to the CDC, Facebook and other social media companies 101 00:05:53.800 --> 00:05:56.680 were kind of working in tandem with the government saying like, 102 00:05:56.720 --> 00:05:58.839 we're going to take these kind of posts down. The 103 00:05:58.920 --> 00:06:02.439 CDC would send examples of posts that should be taken 104 00:06:02.480 --> 00:06:08.160 down of flagging you know, so called vaccine misinformation mass misinformation, that. 105 00:06:08.160 --> 00:06:08.600 Kind of thing. 106 00:06:09.120 --> 00:06:12.000 I think it's really important to point out that although 107 00:06:12.040 --> 00:06:15.720 the First Amendment protects, you know, so called misinformation even 108 00:06:15.800 --> 00:06:21.439 false speech, our plaintiffs were not seeing things that were false. 109 00:06:22.199 --> 00:06:26.600 They were saying mostly true things, I would say, perhaps almost. 110 00:06:26.279 --> 00:06:27.319 Entirely true things. 111 00:06:27.439 --> 00:06:29.560 And Jay Bodichari and Martin Couldorf are two of the 112 00:06:29.600 --> 00:06:32.680 top epidemiologists in the world, and they were being censored 113 00:06:32.720 --> 00:06:36.839 at the behest of the Biden administration on topics on 114 00:06:36.879 --> 00:06:39.040 the areas of their expertise. So I think this case 115 00:06:39.120 --> 00:06:41.120 really highlights why we have a First Amendment and why 116 00:06:41.120 --> 00:06:43.439 we don't like, why do we don't allow the government 117 00:06:43.480 --> 00:06:46.319 to be involved in this kind of thing or in 118 00:06:46.800 --> 00:06:53.160 suppressing viewpoints that it disagrees with. So the core allegations 119 00:06:53.160 --> 00:06:56.279 some additional allegations were raised in the complaint, but the core, 120 00:06:56.480 --> 00:07:00.319 especially on the preliminary junction, the core complaint was First 121 00:07:00.360 --> 00:07:04.160 Amendment violations, and the idea was that the government was 122 00:07:04.360 --> 00:07:08.160 sort of instrumentalizing these private companies to accomplish its censorship aims, 123 00:07:08.199 --> 00:07:11.759 and that was effectively a First Amendment violation because the 124 00:07:11.759 --> 00:07:15.279 government can't use private industry to accomplish what it can't directly. 125 00:07:16.079 --> 00:07:19.160 So the District Court in the Western District of Louisiana 126 00:07:19.399 --> 00:07:23.160 found for us almost entirely, found that the plaintiffs had 127 00:07:23.160 --> 00:07:30.879 standing and found that it was well this was on 128 00:07:30.920 --> 00:07:35.480 a preliminary injunction, but that the government had likely violated 129 00:07:35.480 --> 00:07:38.560 their First Amendment rights and that the harm was irreparable. 130 00:07:38.600 --> 00:07:41.160 So granted the preliminary in junction. It was mostly upheld 131 00:07:41.199 --> 00:07:43.800 by the Fifth Circuit. The Fifth Circuit kicked out a 132 00:07:43.839 --> 00:07:46.959 couple of the defendants, so they found there wasn't enough 133 00:07:46.959 --> 00:07:51.600 evidence that Niad and Ih, so mostly we're talking about 134 00:07:51.600 --> 00:07:54.759 doctor Fauci, that he was actually involved in this censorship, 135 00:07:54.759 --> 00:07:56.680 so he was not in the injunction. 136 00:07:56.879 --> 00:07:57.959 That importantly. 137 00:07:58.000 --> 00:08:01.920 Also, the district court denied government's motion to dismiss the complaint, 138 00:08:02.160 --> 00:08:06.600 so the case in the district court is still live 139 00:08:06.720 --> 00:08:11.240 despite the fact that the Supreme Court, uh reverse the 140 00:08:11.240 --> 00:08:12.560 grant of the preliminary injunction. 141 00:08:15.360 --> 00:08:18.959 Yeah, thank you for that, and yeah, apologies a little 142 00:08:19.000 --> 00:08:22.519 little housekeeping. Uh, you know, it's first of all, you know, 143 00:08:22.560 --> 00:08:26.040 it's great we have you know, the two people who 144 00:08:26.079 --> 00:08:27.959 represented parties in this case. 145 00:08:27.759 --> 00:08:29.040 Which is great. 146 00:08:30.439 --> 00:08:30.600 Uh. 147 00:08:30.639 --> 00:08:32.840 And I want to thank Soliciener General divine for for 148 00:08:32.879 --> 00:08:36.159 taking time out of the business schedule, I'm sure for 149 00:08:36.159 --> 00:08:39.840 for coming Next, I'd like to turn to Corbin. 150 00:08:41.279 --> 00:08:44.399 And uh And and ask for. 151 00:08:45.919 --> 00:08:50.840 An assessment of the District Court and in the circuit opinions. 152 00:08:50.919 --> 00:08:53.840 I know I listen to podcasts from you, and why 153 00:08:53.879 --> 00:08:57.519 I reached out to you. You have some good reservations 154 00:08:57.559 --> 00:09:02.360 about the nature of the injunction, the breadth of the injunction, 155 00:09:04.000 --> 00:09:06.360 and I think you may have had issues with the 156 00:09:06.399 --> 00:09:10.720 standing as well. So and obviously the Spring Court found 157 00:09:10.720 --> 00:09:14.679 the standing issues the most most salient here. So so Corbyn, 158 00:09:14.840 --> 00:09:21.039 for you your assessment of the District Court, district opinion 159 00:09:21.159 --> 00:09:23.039 and also the Spring Court opinion. 160 00:09:23.120 --> 00:09:25.679 Just how they came down how they did. 161 00:09:26.399 --> 00:09:29.679 Sure, okay. So as with the first question, is that 162 00:09:29.679 --> 00:09:33.600 there's a lot there. It was it was pretty clear 163 00:09:33.600 --> 00:09:36.720 to me how things were probably going to go with 164 00:09:36.759 --> 00:09:41.480 the rest of the case from July fourth, twenty twenty three, 165 00:09:42.159 --> 00:09:44.840 that's the day the District Court issued its opinion. The 166 00:09:44.840 --> 00:09:48.919 District Court took what it called a bird's eye view 167 00:09:48.960 --> 00:09:51.799 of traceability and so I kind of glossed over the 168 00:09:51.840 --> 00:09:55.360 actual record. I didn't really make an attempt to link 169 00:09:55.399 --> 00:09:59.000 any government conduct with any specific act of content moderation. 170 00:10:00.240 --> 00:10:03.279 More importantly, though, the court presented a factual analysis that 171 00:10:03.360 --> 00:10:06.320 was so riddled with airs and fabrications that it was 172 00:10:06.360 --> 00:10:10.960 clearly going to be useless to any reviewing court. Also, 173 00:10:11.000 --> 00:10:16.080 the judge bought into the censorship Industrial Complex narrative in 174 00:10:16.120 --> 00:10:20.279 which the Stanford Internet ob Observatory was supposedly a puppet 175 00:10:20.320 --> 00:10:24.159 of the government through SISA instead of a group doing 176 00:10:24.200 --> 00:10:28.960 its own independent research and advocacy and let's not forget 177 00:10:29.000 --> 00:10:34.360 exercising its own First Amendment rights. So those problems trickled 178 00:10:34.440 --> 00:10:38.200 up to the Supreme Court. The government had to say 179 00:10:38.200 --> 00:10:41.200 in a footnote in its reply that it couldn't possibly 180 00:10:41.240 --> 00:10:45.159 respond to all the inaccuracies that were floating around, which 181 00:10:45.440 --> 00:10:49.279 was true. Justice Soda Mayor said an oral argument that 182 00:10:49.360 --> 00:10:52.559 she couldn't untangle all the inaccuracies in the planet of 183 00:10:52.559 --> 00:10:55.600 its brief. She said, quote, you know, I have such 184 00:10:55.600 --> 00:10:59.600 a problem with your brief, counselor you omit information that 185 00:10:59.679 --> 00:11:02.480 changed is the context of some of your claims. You 186 00:11:02.519 --> 00:11:06.080 attribute things to people who it didn't happen to dot 187 00:11:06.120 --> 00:11:09.399 dot dot. I don't know what to make of all this. 188 00:11:10.919 --> 00:11:14.480 And at the oral argument, the SG of Louisiana. You know, 189 00:11:14.919 --> 00:11:17.039 I'm afraid he didn't really help matters. He kind of 190 00:11:17.080 --> 00:11:21.240 bounced around. The Justice has struggled to understand him. Justice 191 00:11:21.240 --> 00:11:24.240 Barrett said she wasn't even sure what his argument was. 192 00:11:25.840 --> 00:11:28.120 He said, he you know, I'm a First Amendment purist, 193 00:11:28.200 --> 00:11:31.159 and then he wasn't able to present the scope of 194 00:11:31.200 --> 00:11:36.279 the categories of unprotected speech correctly when talking with Justice Kagan. 195 00:11:38.240 --> 00:11:40.679 So the opinion didn't end up really being a surprise. 196 00:11:41.480 --> 00:11:46.279 At footnote four, the justices, the majority wrote the Fifth 197 00:11:46.279 --> 00:11:49.759 Circuit relied on the District Court's factual findings, many of 198 00:11:49.799 --> 00:11:55.440 which unfortunately appear to be clearly erroneous. And again, I 199 00:11:55.440 --> 00:11:59.080 mean that's true. Throughout our discussion, it's important to remember 200 00:11:59.080 --> 00:12:02.600 that the district courts were thoroughly botched the factual record. Here, 201 00:12:03.679 --> 00:12:06.159 the majority noted that neither the District Court nor the 202 00:12:06.200 --> 00:12:09.879 Court of Appeals made any specific causation findings with respect 203 00:12:09.919 --> 00:12:15.159 to any discreet instances of content moderation. It noted that 204 00:12:15.279 --> 00:12:18.679 Justice Alito and Descent basically had to construct a theory 205 00:12:18.720 --> 00:12:23.200 of causation on his own, and the Majority, for its part, 206 00:12:23.279 --> 00:12:26.080 basically just refused to do that. It trotted out the 207 00:12:26.120 --> 00:12:30.200 old line about how judges aren't pigs hunting for truffles 208 00:12:30.600 --> 00:12:33.919 in the record. So in the end Justice Alito could 209 00:12:33.919 --> 00:12:37.919 formulate his descent kind of only by boiling things down extensively. 210 00:12:38.519 --> 00:12:42.000 He bypassed almost all of the sort of dish gallop 211 00:12:42.080 --> 00:12:45.600 of facts and allegations that had been thrown around below, 212 00:12:46.480 --> 00:12:51.519 and so the censorship industrial complex stuff fell by the wayside. 213 00:12:52.320 --> 00:12:55.440 We didn't hear anything about sort of like significant encouragement 214 00:12:55.559 --> 00:13:00.279 or entanglement. He had to kind of construct for himself 215 00:13:00.639 --> 00:13:03.399 a Bantam Books analysis that was nothing like what the 216 00:13:03.399 --> 00:13:07.519 plaintiffs had presented at oral argument, where they'd argue that 217 00:13:07.600 --> 00:13:10.279 sort of any request by the government to take something 218 00:13:10.360 --> 00:13:14.440 down crosses the line. So while job voting is a 219 00:13:14.480 --> 00:13:17.000 really concerning issue, and I hope we can all kind 220 00:13:17.039 --> 00:13:21.960 of agree on that through the discussion, my take was 221 00:13:22.000 --> 00:13:26.639 this just wasn't really a good case to decide much 222 00:13:26.639 --> 00:13:30.720 of anything. Now moving to the Supreme Court decisions, you know, 223 00:13:30.799 --> 00:13:33.360 once the case got narrowed down to have the majority 224 00:13:33.360 --> 00:13:36.440 and the dissent frame things, I do think there's reasonable 225 00:13:36.480 --> 00:13:40.840 disagreement over the proper outcome. You had sort of this 226 00:13:41.360 --> 00:13:45.799 jousting with different Supreme Court standing decisions, and maybe we 227 00:13:45.840 --> 00:13:50.440 can get into that more. You know, Justice Alito certainly 228 00:13:50.440 --> 00:13:53.039 had a point that the Court should try to apply 229 00:13:53.120 --> 00:13:59.080 it standing doctrine consistently. But what you basically had was agreement, 230 00:13:59.200 --> 00:14:01.480 like at least at a high level, that the government 231 00:14:01.519 --> 00:14:05.159 exerted pressure on the platforms to moderate content relating to 232 00:14:05.200 --> 00:14:09.399 COVID nineteen and the twenty twenty election. But the majority 233 00:14:09.440 --> 00:14:11.720 said that it had to work quote to untangle the 234 00:14:11.759 --> 00:14:16.600 mass of the plaintiff's injuries and government communications, and once 235 00:14:16.639 --> 00:14:20.120 it did that, it just couldn't find any solid links. So, 236 00:14:20.679 --> 00:14:22.399 you know, give one example, we heard about the Great 237 00:14:22.440 --> 00:14:27.960 Barrington Declaration, but the majority found that the platforms had 238 00:14:27.960 --> 00:14:31.039 taken action against that before there was really any communication 239 00:14:31.159 --> 00:14:37.120 between the platforms and the government. So I think the 240 00:14:37.480 --> 00:14:40.519 ultimate take home is the majority wasn't willing to engage 241 00:14:40.600 --> 00:14:44.639 in sort of this imaginative reconstruction of the vast record 242 00:14:44.679 --> 00:14:47.840 that was plocked in a pile before it. That was 243 00:14:47.919 --> 00:14:49.840 kind of my biggest take home. 244 00:14:50.840 --> 00:14:51.360 Thank you for that. 245 00:14:52.879 --> 00:14:57.879 Next, like to turn to the general divine and if 246 00:14:57.879 --> 00:15:01.039 you could talk about I guess I guess first of all, 247 00:15:01.039 --> 00:15:03.039 talk about Missouri's interest in the case. 248 00:15:03.639 --> 00:15:06.879 Uh for bid a little unusual cy of state. 249 00:15:08.080 --> 00:15:11.279 I was glad to see Missouri take an interest in 250 00:15:11.279 --> 00:15:14.519 the case, but talk about the state's interests, and also 251 00:15:15.639 --> 00:15:18.200 I follow this case and there was uh if you 252 00:15:18.240 --> 00:15:22.480 could also talk about some of the depositions and evidence, uh, 253 00:15:22.639 --> 00:15:25.480 you know that that you have turned up in this case, 254 00:15:25.559 --> 00:15:28.240 and then I'll probably follow up as well. 255 00:15:28.440 --> 00:15:31.240 Yeah, so I'll take it as an order. So Missouri's 256 00:15:31.279 --> 00:15:33.279 interest in this case. One of the theories of standing 257 00:15:33.279 --> 00:15:36.399 that we pressed is that, you know, there's this long 258 00:15:36.440 --> 00:15:39.240 line of cases from the by the Spring Court that 259 00:15:39.279 --> 00:15:42.440 the Spring Court doesn't really discuss very much in this opinion, 260 00:15:42.840 --> 00:15:45.039 which is that the states have an interest in hearing 261 00:15:45.039 --> 00:15:49.480 from their citizens. You've got you've got a bunch of 262 00:15:49.480 --> 00:15:54.919 different cases terminiel O Guarnieri that all discussed that the 263 00:15:54.960 --> 00:15:57.320 whole you know, part of the purpose of the First 264 00:15:57.360 --> 00:16:00.240 Amendment and part of the purpose of free speech is 265 00:16:00.240 --> 00:16:03.840 to enable states to really hear from their citizens so 266 00:16:03.840 --> 00:16:07.159 that they can be responsive to the needs and concerns 267 00:16:07.159 --> 00:16:09.279 of their citizens. So that's one of the theories of 268 00:16:09.320 --> 00:16:14.759 standing we advance here, and that's a definite state interest. 269 00:16:15.000 --> 00:16:17.399 The Spreme Court didn't deny that. Instead, what it said 270 00:16:17.440 --> 00:16:19.279 is that you know that, well, you need to be 271 00:16:19.279 --> 00:16:21.919 a little bit more specific and the type of thing 272 00:16:21.919 --> 00:16:24.639 that you're wanting to hear. The problem, of course, is, 273 00:16:25.120 --> 00:16:28.320 you know, when things are being censored, nobody really knows 274 00:16:28.320 --> 00:16:31.440 what this universe is. You know, that's the whole point. 275 00:16:31.480 --> 00:16:33.559 It's being censored, and so you don't know exactly what's 276 00:16:33.600 --> 00:16:36.320 going on. You don't exactly know what you're unable to 277 00:16:36.360 --> 00:16:38.679 hear at that point, and so the Spreme Court's kind 278 00:16:38.679 --> 00:16:41.519 of set up this impossible standard from the perspective of 279 00:16:41.559 --> 00:16:45.360 the listener's ability to identify the things that they would 280 00:16:45.360 --> 00:16:48.240 like to hear, but that they're unable to. The second 281 00:16:48.240 --> 00:16:50.240 thing that Spring Court does is it kind of just 282 00:16:50.679 --> 00:16:54.240 it pretty much ignores about twenty years of precedent with 283 00:16:54.279 --> 00:16:56.879 respect to the ability of states to bring what are 284 00:16:56.879 --> 00:17:01.440 called parents potrai lawsuits against the federal government. So you've 285 00:17:01.440 --> 00:17:03.639 got these you've got these cases from the nineties and 286 00:17:03.720 --> 00:17:07.119 early two thousands where the Supreme Court allows states to 287 00:17:07.160 --> 00:17:10.759 do that, and basically a parents patriay action just means you're, 288 00:17:12.240 --> 00:17:16.720 in essence, asserting you're as certain that there's a very 289 00:17:16.799 --> 00:17:19.279 widespread harm to the people of Missouri to the people 290 00:17:19.319 --> 00:17:21.640 of the state. And what you're essentially doing is you're 291 00:17:21.720 --> 00:17:24.240 certain that this this harm has become so widespread that 292 00:17:24.319 --> 00:17:27.279 it has in fact become an injury to the state itself. 293 00:17:27.799 --> 00:17:29.920 And the Spring Court allowed this in a nineteen ninety 294 00:17:29.960 --> 00:17:31.839 five case. The Supreme Court allowed this in a two 295 00:17:31.839 --> 00:17:34.880 thousand and seven case. And what they did here is 296 00:17:34.920 --> 00:17:39.640 they dug up dicta from a nineteen sixties case and 297 00:17:39.680 --> 00:17:42.039 they said and they just cite that and say, well, 298 00:17:42.119 --> 00:17:44.880 this is you know, the states can't bring parents potry 299 00:17:45.000 --> 00:17:47.920 suits against the federal government. But if you actually look 300 00:17:47.960 --> 00:17:51.319 at that, that's dealing with situations where where the state 301 00:17:51.400 --> 00:17:54.279 isn't actually asserting its own kind of harm, it's purely 302 00:17:54.319 --> 00:17:58.400 asserting the third party harms of other individuals. In every 303 00:17:58.400 --> 00:18:01.599 single case where a state has a its own theory 304 00:18:01.640 --> 00:18:05.680 of harm, the US Supreme Court has allowed the state 305 00:18:05.759 --> 00:18:08.160 to bring a parents potry action. And the Supreme Court 306 00:18:08.319 --> 00:18:11.559 just completely misses that entire line of doctrine, doesn't discuss 307 00:18:11.599 --> 00:18:13.279 it at all. And so I think we've got a 308 00:18:13.519 --> 00:18:17.319 very unusual parents potry decision from the Supreme Court on 309 00:18:17.400 --> 00:18:21.559 this issue that really just doesn't wrestle with that fundamental 310 00:18:21.599 --> 00:18:24.640 difference and what what gives us states the ability and 311 00:18:24.720 --> 00:18:28.559 the interest to bring a suit like this. I want 312 00:18:28.599 --> 00:18:30.279 to I want to respond to a couple of things 313 00:18:30.319 --> 00:18:33.279 that Corbyn said. I think we've got a large amount 314 00:18:33.319 --> 00:18:35.519 of no no surprise that you know one of the 315 00:18:35.559 --> 00:18:40.160 individuals represent these individuals, Uh, these pointiffs disagrees with what 316 00:18:40.279 --> 00:18:43.559 Corbin said. Let let me let me just let me 317 00:18:43.880 --> 00:18:46.240 let me just leave it at this, which is that 318 00:18:46.880 --> 00:18:50.519 you know, nobody really dispeedes at the Supreme Court. Nobody 319 00:18:50.559 --> 00:18:53.440 really disputes that work. There were very severe First Amendment 320 00:18:53.440 --> 00:18:57.400 of violations that were going on. I mean, the majority opinion, 321 00:18:57.440 --> 00:19:00.319 for example, discusses at one point like, yeah, look like 322 00:19:00.440 --> 00:19:05.039 that pressure from the federal government actually altered the policies 323 00:19:05.160 --> 00:19:08.359 of Facebook and Twitter and these other organizations. But then 324 00:19:08.400 --> 00:19:11.200 the Supreme Course says, but you know, that's a past violation. 325 00:19:11.519 --> 00:19:14.240 You can't necessarily get prospective relief from that. But they 326 00:19:14.240 --> 00:19:17.319 don't deny that they were blatant violations. The government had 327 00:19:17.440 --> 00:19:23.039 insinuated itself into this atmosphere and had actually physically changed 328 00:19:23.319 --> 00:19:27.839 the policies of Facebook and other organizations to induce further 329 00:19:28.240 --> 00:19:34.680 future suppression. But I think just from a causation standpoint, 330 00:19:35.160 --> 00:19:37.480 if you look at the facts, if you look at 331 00:19:37.519 --> 00:19:41.559 what happened in July twenty twenty one, you see a rapid, 332 00:19:43.400 --> 00:19:47.039 much more aggressive posture from the White House, from the 333 00:19:47.039 --> 00:19:49.240 Surgeon General, from some of the other defendants in July 334 00:19:49.359 --> 00:19:52.359 twenty twenty one, much more aggressive, and then you find 335 00:19:52.400 --> 00:19:56.319 an uptick in censorship after that. So it's never been 336 00:19:56.400 --> 00:20:03.160 our position that, you know, there hasn't been some censorship 337 00:20:03.319 --> 00:20:06.680 or you know, suppression or content moderation or whatever term 338 00:20:06.720 --> 00:20:09.839 you want to use. It's never been our position that 339 00:20:09.960 --> 00:20:12.519 there hasn't been some of that already going on by 340 00:20:12.640 --> 00:20:15.599 the platforms. But what we identified are you know, you've 341 00:20:15.599 --> 00:20:18.039 got some of these discrete events July twenty twenty one, 342 00:20:18.359 --> 00:20:20.960 huge increase in aggression from the White House, and then 343 00:20:21.000 --> 00:20:26.119 you also see an increase in content moderation or suppression 344 00:20:26.200 --> 00:20:29.000 or censorship. And it doesn't take a genius to be 345 00:20:29.079 --> 00:20:31.559 able to draw that inference there. Now, look, you know 346 00:20:32.400 --> 00:20:35.839 you can't draw certainty inference there, but the doctrine doesn't 347 00:20:35.880 --> 00:20:39.119 require any kind of certainty. It requires a likelihood. And 348 00:20:39.240 --> 00:20:42.000 so you know, I do want to very strongly to speed, 349 00:20:42.039 --> 00:20:44.480 the idea that we didn't establish causation, that we didn't 350 00:20:44.480 --> 00:20:47.519 do anything like that. I think the Supreme Court basically 351 00:20:48.279 --> 00:20:51.319 looked at the record and you know, refused to draw 352 00:20:51.319 --> 00:20:53.759 a single inference in our favor, which was different from 353 00:20:53.799 --> 00:20:55.720 the district court and different from the Court of Appeals. 354 00:20:56.680 --> 00:20:58.880 I'll ask a follow up on that, just something that 355 00:20:59.000 --> 00:21:01.000 jumped out in the opinion, and then I'll ask each 356 00:21:01.039 --> 00:21:04.279 of you for things that jumped out in the opinion 357 00:21:04.680 --> 00:21:08.920 in or arguments itself. But just find a sister general 358 00:21:09.039 --> 00:21:15.599 Divines comment. So the majorities about traceability. The majority statement said, 359 00:21:16.400 --> 00:21:19.319 the primary weakness in this record, this is a quote 360 00:21:20.079 --> 00:21:22.319 in the record of past restrictions, is the lack of 361 00:21:22.400 --> 00:21:26.720 specific causation findings with respect to any discrete instance of 362 00:21:26.799 --> 00:21:28.440 content moderation end quote. 363 00:21:29.599 --> 00:21:35.039 So maybe, Janina, a person go to you. I'm not 364 00:21:35.039 --> 00:21:36.000 an expert on standing. 365 00:21:36.480 --> 00:21:42.000 Frankly, that seems like a very high standard to establish 366 00:21:42.079 --> 00:21:44.240 standing that you need to show in the first amment 367 00:21:44.279 --> 00:21:50.480 of context specific causation findings or speak with respect to 368 00:21:50.759 --> 00:21:55.400 any discrete instance of content or moderation. Your response to 369 00:21:55.519 --> 00:21:57.599 that statement from the court, Yeah. 370 00:21:57.519 --> 00:21:59.799 It seems to me that the Court's basically requiring that 371 00:21:59.880 --> 00:22:02.680 you show that a specific post was censored because of 372 00:22:02.759 --> 00:22:06.160 the government, which seems very very hard to do, and. 373 00:22:07.720 --> 00:22:09.640 I'll use So this was actually an. 374 00:22:09.559 --> 00:22:12.880 Example that came out later through a congressional investigation, but 375 00:22:13.079 --> 00:22:16.640 it's a very clear one. There were internal emails from 376 00:22:16.720 --> 00:22:19.039 Meta that were revealed as a result of this investigation 377 00:22:19.440 --> 00:22:22.160 where Nick Clegg, who's an executive there, wrote to another 378 00:22:22.200 --> 00:22:24.599 employee and said, can you remind me why we censored 379 00:22:24.640 --> 00:22:27.039 the lab leak theory, and the other employees says, because 380 00:22:27.079 --> 00:22:29.279 we were under pressure from the White House, we shouldn't 381 00:22:29.319 --> 00:22:29.680 have done it. 382 00:22:30.319 --> 00:22:32.200 Unfortunately, that was not for the. 383 00:22:32.200 --> 00:22:35.960 Record because it was came out after the Fifth Circuit briefing, 384 00:22:36.319 --> 00:22:38.200 and there's a lot of stuff in the record that 385 00:22:38.319 --> 00:22:40.759 is very similar to that. That's just the most stark example, 386 00:22:41.359 --> 00:22:43.720 so I think it crystallizes it. But that is very 387 00:22:43.759 --> 00:22:46.720 clear that this entire theory, this entire narrative, this entire 388 00:22:46.799 --> 00:22:49.160 line of thought was censored on social media because of 389 00:22:49.240 --> 00:22:52.519 the government. And I think even there, the court is 390 00:22:52.559 --> 00:22:55.160 insinuating that you would have to show that your specific 391 00:22:55.359 --> 00:22:59.160 post was censored because the government had called you out 392 00:22:59.240 --> 00:22:59.640 or named you. 393 00:22:59.680 --> 00:23:01.160 I don't know who's going to be able to do that. 394 00:23:01.240 --> 00:23:03.519 There may be two people I can think of, RFK 395 00:23:03.720 --> 00:23:07.440 and Alex Bearnson, who are specifically singled out by government 396 00:23:07.480 --> 00:23:09.559 officials by name. I also want to respond to if 397 00:23:09.559 --> 00:23:13.000 I made one thing that Corbin said about the factual inaccuracies. 398 00:23:13.039 --> 00:23:15.039 I really wanted to speed that this was a twenty 399 00:23:15.119 --> 00:23:18.680 thousand page record the district court might have gotten, you know, 400 00:23:18.880 --> 00:23:20.440 said a couple of things not exactly the way I 401 00:23:20.480 --> 00:23:24.359