So to Speak podcast transcript: The First Amendment at the Supreme Court

Note: This is an unedited rush transcript. Please check any quotations against the audio recording.

Nico Perrino: All right, folks, welcome back to So to Speak: The Free Speech Podcast, where every other week we take an uncensored look at the world of free expression. I am, as always, your host, Nico Perrino. And what was it a week ago, we had our first ever members-only call where I brought in another member of the FIRE staff, in this case Greg Lukianoff, to take questions from So to Speak, subscribers who are paid on our Substack channel, as well as any FIRE members, that is, anyone who donates $25 within a calendar year got access to this exclusive conversation.

And on that call, we discussed artificial intelligence and free speech. We discussed the recently released Coddling of the American Mind documentary, which, of course, is based on the book of the same name. We discussed campuses post-October 7th. You can't ignore that and some of the violence that we saw at the University of California, Berkeley last month. Or was that this month? We're still in March, aren't we? So, if you want access to these conversations, you can only get it if you're a paid subscriber to So to Speak, on Substack, or if you are a member of FIRE. We're testing out formats. We've received good feedback. The calls will be recorded and shared. So, if you can't come live and ask your questions, they will be recorded and shared on our Substack, the So to Speak Substack.

But if you're also a FIRE member, we’re some breaking news here, building you a members-only portal on FIRE's website, thefire.org And that should be coming in the coming weeks or months. I don't know exactly the go-live date, but it's in beta testing right now. Our next members-only call, put it on your calendars, is Tuesday, April 9th at noon. And we will be joined by FIRE legal director Will Creeley and FIRE chief counsel Bob Corn-Revere, who's joining us as well today. And we're gonna be taking questions and discussing the recent Supreme Court arguments, some of FIRE's litigation efforts.

And we just wanna hear what questions you might have and we'll try and answer them live to the extent we can on this podcast, we are gonna be discussing this Supreme Court term. We just had arguments in NRA v. Vullo as well as Murthy v. Missouri. And last month we had arguments in the NetChoice cases, and we also got some decisions in the social media blocking cases. So, there's a lot going on in the First Amendment world at the Supreme Court at the moment. And as Bob Corn-Revere had mentioned on a previous podcast, he's been doing First Amendment work for decades. And correct me if I'm wrong, Bob, you said this is probably the most significant Supreme Court term in quite some time?

Bob Corn-Revere: And that evaluation stands since I've been practicing law.

Nico Perrino: So, that's Bob Corn-Revere. That's his voice, ladies and gentlemen. You're gonna be hearing it a lot throughout this podcast, and you've heard him on past podcasts. We also have Ronnie London, FIRE's general counsel. Ronnie, welcome to the show.

Ronnie London: Thank you.

Nico Perrino: And Aaron Terr, who is FIRE's director of public advocacy. Welcome onto the show.

Aaron Terr: Thanks, Nico.

Nico Perrino: All right, let's start with NRA v. Vullo. It was argued on Tuesday, March 19th, we've discussed it previously on the podcast, when it was accepted for Cert and when it was in the briefing stages. But just to read our listeners in, who might not be familiar and refresh those who have forgotten this case involves the National Rifle Association. They sued Maria Vullo, who's the head of New York's department of financial services, alleging that she made a series of threats against the banks and insurers that she regulates, pressuring them to sever ties with the NRA because of the NRA's gun rights advocacy.

And they argue that these pressure tactics amounted to coercive viewpoint discrimination, which is prohibited under the First Amendment. But the second Circuit disagreed with that argument and dismissed the case, writing that regulated banks and bank regulators have a right to be concerned about unpopular speech and that New York's actions amounted to government speech, not an infringement on the First Amendment rights. Some kind of context here. Parkland happened, the school shooting in 2018, and Maria Vullo and other officials within New York began embarking on kind of gun control advocacy, and they met with Lloyds of London in the wake of the Parkland shooting. Lloyds of London is a banker insurer.

And she told Lloyds that she believed the company's business relationships with the NRA, including that it underrated the so-called concealed carry insurance policies, often referred to as murder policies, could violate some of her agency's rules and told them that they could avoid liability if they canceled their relationship with the NRA, which they did, I believe, in April. That meeting was in February. So, we had oral argument on March 19th. I'm gonna start with you, Bob. Where do you think the justices' heads were on this case?

Bob Corn-Revere: Well, it's an interesting and more complicated question than you would think, because there were two arguments that day, both of them involving the use of informal government pressure to try and alter what private speakers do. The other case involved social media. And we will get to that. Murthy versus Missouri. But the second argument of that day, which attracted less interest than I thought it would, and partly because it was a double bill with a case that attracted more interest, was this question of whether or not the government can use its regulatory power to put the thumb on the scale and require third parties, or at least induce third parties, to put the screws to others whose speech the state dislikes, in this case, the NRA.

The state of New York decided that it did not like the NRA's pro-gun rights message, and as a consequence, was using third parties to try and starve out the NRA, to try and say, “You can't do business with this organization.” Well, let me put it this way. Everyone agreed with the premise that it is improper for government to put excessive pressure on third parties. The question was where is the line? Where do you go from legitimate government speech, the bully pulpit, so to speak, to just being a bully, which is the way it was put during the oral argument? I detected a lot more sympathy for the First Amendment position in this case from the justices than in the Murthy versus Missouri case, which had a much more complicated set of facts.

But what's really interesting about this, apart from just the overall use of government power this way, is that the court was being asked to apply a 60-year-old precedent involving putting pressure on bookstores that everybody agrees is the controlling precedent. And everybody, including the second circuit below, appears to agree that you can use four factors to determine whether or not the government has gone too far and the pressure that it's putting on private speakers. The question was whether or not the second circuit got it right, which is not the usual basis on which the Supreme Court accepts review.

It doesn't really take cases for error correction, whether or not it was simply telling the second Circuit to reconsider. So, given that the court is taking a broader look of jawboning in general, there's more going on, and it'll be interesting to see what they finally come out with.

Nico Perrino: Ronnie, I wanna ask you, I wanna turn to a question that Justice Alito asked during argument along the lines of what Bob just laid out. He said –

Male Speaker 1: On the question of the meaning of coercion, I can think of a spectrum. On one end of the spectrum, a government official says, “Look, suppress this speech, and if you don't do it, I have legal weapons I can use against you, and I'm gonna punish you using those.” That's very clear coercion. At the other end, the government official who has no authority to do anything for any practical purposes to the entity that the government official is speaking to says, “You should do this. It would be a good thing to do. You’d be a good citizen if you did it.”

And in between, there are a lot of different gradations, particularly when the official who's making this request has that power and you have to assume the person or the entity to whom or to which the request is being made knows that just as I am sure that these insurance companies were well aware of the power of Ms. Vullo.

So, how do you define when it goes too far along that line?

Nico Perrino: Is this Bantam Books, which I believe was maybe the case you were referencing Bob? Ronnie, how are you thinking about these questions?

Ronnie London: I think first the benefit of the doubt has to be given to the speaker or the entity whose speech is being suppressed through third parties. So, if you're asking me where on the spectrum something falls, in theory, there's a point where once you cross that line, you're now in the government coercion space and you're no longer in simply a government actor with limited or no power, just suggesting what the right state of affairs for the world should be.

But I will say that as you get closer to that line, A) It's gonna be really hard to tell exactly where that line is as a general proposition in a way that would be able to be applied to all cases. I mean, these cases really need to be taken on their own facts, looking specifically at who the government actor is, what type of authority they hold, what is actually being said or implied to the speaker or to the third party. And if you're trying to draw a line, I think you have to err, like I said, on the benefit of free speech. And that means that if there is any reasonable concept of that government actor being able to penalize and is being brought to bear through explicit words or implications that consequences would follow. That ought to be enough.

One thing that I found interesting about this case is, remember, it's up on a motion to dismiss, which means that you have to take all of the allegations in favor of the non-moving party. And in this case, that's the NRA. And it wasn't clear that the second Circuit necessarily did that. The second Circuit kind of weaved their way through facts and came to a conclusion that there was no set of facts alleged on which relief could be granted on the constitutional claims. That, to me, seemed improper. But again, the court is not one of error correction. But you do have to resolve the question of when does it cross the line into coercion.

I think that if there is any reasonable power that the government actor could bring to bear, that ought to be sufficient because people don't lightly ignore a government command. It's funny, we filed a brief, and I'm gonna take the long way around here if you don't mind. But we filed a brief last week in a case involving a high school student and a junior high school student who wore, Let's Go Brandon sweatshirts to school, and they were both told to take off the sweatshirts. And the argument is whether or not that suppresses their speech. But one of the things we point out in the brief is –

Nico Perrino: And just for context for our listeners who might not be read into the kind of meme Lord Twitter, that Let's Go Brandon is a euphemism for fuck Joe Biden.

Ronnie London: Right. It's a sanitized euphemism to criticize the president. And the point I'm getting at here is that when you're a student in high school or junior high school as is the case maybe here, and teacher asks you, “Don't you really wanna take that sweatshirt off?” That's not a question. It's a command. And the same thing is true in this context where a government actor might say, “Don't you think it would be better not to support products that ensure gun users that the NRA offers?” It shouldn't take a lot. And you have to consider the totality of the factors.

You're talking about closed-door meetings between a regulator and the entities who she directly regulates. And we'll get into this some more as we talk about the various government actors in Murthy as well, where you have to look at the relationship between the government actor and the entity to whom they're speaking.

Nico Perrino: Aaron?

Aaron Terr: I think the test used by the second Circuit and applied by the Fifth Circuit in Murthy, which the other case show, Bonnie case we're gonna talk about, recognizes that it's a fact-specific inquiry, and it can be difficult in particular cases to draw the line between permissible persuasion and unconstitutional coercion. But the test looks at a mix of factors to help make that determination. So, you look at things like the government official's word choice and tone. You look at whether the speech was perceived as a threat by the recipient of that speech.

You look at whether the speech is backed by regulatory authority, which it was in NRA v. Vullo, and you also look at whether the government official refers to adverse consequences. So, it's a fact-intensive, contextual inquiry, but you definitely don't need an explicit threat. You don't need an or else that can be implied. Bear in mind, too, that Bantam Books, this 60-year-old precedent, that's almost all we have to go on from the Supreme Court.

Nico Perrino: And that's where this test comes from Aaron?

Aaron Terr: No, this four-factor test was developed by, I think, the second Circuit originally, or one of the circuit court. Yeah, but I bring up Bantam Books just to note that so, in that case, the Rhode Island had created a commission to investigate and recommend for prosecution distributors of obscene or indecent literature. And so they would notify booksellers if they found that materials that they were selling were, “objectionable” for sale, and advise them that the list would be circulated to local police departments. But the commission itself actually couldn't directly punish the booksellers by prosecuting them or fining them.

But the Supreme Court nevertheless said that this system of informal censorship violated the First Amendment. And the NRA case actually, you have an agency that does have the ability to impose direct consequences on the speaker. So, I think based on the facts as alleged in the complaint, it is a pretty strong case.

Nico Perrino: Are we gonna get a new test from this case, you think?

Bob Corn-Revere: No, I don't think we're gonna get a new test. But what I think we might get, if the court decides the way we advocated in our amicus brief, is some clarification on when that line gets crossed. I think it helps to make this slightly less abstract, and I'm glad Aaron went through the facts of Bantam Books, because it's really instructive. Bantam Books was decided in 1963, and it followed a period in which the Supreme Court had increasingly made clear the First Amendment protections for literature of all kinds, lowbrow, highbrow, and all of that. And what led to Bantam Books were efforts by usually local governments to try and evade the rules that the Supreme Court had laid down.

So, in 1948, the Supreme Court struck down a New York law that prohibited selling accounts of bloodshed and lust, which was going back even to the 1880s. And that was struck down. And then in 1957, the court struck down a Michigan law in Butler versus Michigan that said that you can't reduce the adult population to reading only what is fit for a minor. So, as the Supreme Court increasingly laid down more robust protections for First Amendment and for books, the response by many local governments was to try and find informal ways to avoid having First Amendment scrutiny.

And so they would have citizens groups propose lists of unfit literature or literature that was detrimental to youth and Rhode Island, as Aaron mentioned, set up this commission, which was gonna come up with a list of unsuitable titles which would then be circulated to booksellers, and then followed by a friendly visit from the local constable saying, “Oh, by the way, are you still selling these titles?” And so even though the state didn't have, or the commission established by the state didn't have any enforcement authority itself, it was still using a wink-wink nudge-nudge way of suppressing literature.

And the Supreme Court in 1963 decided this is even worse in some ways than formal regulation, because you have no due process protections that you would if the state actually directly tried to apply the rule of law. So, these are ways in which the states, or in some cases, the federal government, try and do by indirect means what the constitution clearly prohibits directly. And that's what led us to today, because various other cases have come up over the years. The Supreme Court hasn't clarified this, but various other contexts have come up in the circuits where states or other governmental actors have tried to impose various informal mechanisms.

And this, for the first time, will allow the court to come up with perhaps a set of factors, perhaps adopting the factors that the Fifth Circuit and now others have adopted for trying to identify when that informal regulation line gets exceeded. And it's no longer just government giving advice.

Nico Perrino: Justice Sotomayor was kind of asking a question along these lines during oral argument. So, I wanna turn to her right here.

Female Speaker 1: I'm still not sure that if the February 18th meeting had not happened, that standing alone, that guidance letter as written, would necessarily be coercion. I'm not sure the consent decrees could be viewed as selective prosecution when there is no question I don't believe that the carry guard had provisions, the carry guard insurance policies had provisions that violated New York law. They reimbursed for criminal activity, and they reimbursed for intentional acts, which New York insurance law clearly says you can't do.

Nico Perrino: So, there are kind of two questions based, baked into Justice Sotomayor’s one question here. The first is regarding these concealed carry insurance policies and whether they're actually murder insurance and whether those policies are illegal under New York law, and whether Maria Vullo and New York officials have an interest in warning the insurers and bankers against these sorts of policies. The other question is, like, about the guidance letter. Okay, so you put Lloyds of London and these insurance policies to decide.

The defense in this case argues that bankers and insurers are supposed to consider reputational harm in issuing policies doing business as part of the kind of underwriting process, and that her guidance letter to them, which talked about the reputational harms of associating with NRI, was merely her reminding them of kind of underwriting standards. So, I wanna throw it out to the group. The two questions, the concealed carry insurance policies, how do we think about those in these, in this case, and the reputational harm argument that Neil Katyal, who was representing Vullo, made?

Ronnie London: I would take those in reverse order. Maybe it's almost, on some levels, the difference between viewpoint-based discrimination and viewpoint-neutral discrimination when it comes to speech. Right? It's one thing to say that our regulates should take reputational harm into consideration when they are doing business and issuing policies and deciding what they wanna underwrite and who they wanna partner with. It's another thing to say, “And these particular people are especially the ones that you wanna be careful about.” Now you're putting your thumb on the scale. So, there's some problems there.

And to tie back to something that Bob said about how in some ways, this kind of informal coercion is worse than direct regulation, partly because it happens without going through any judicial process. It happens often without being done in the light of day. It's not like the bent books commission, like, went out on the town square and said, okay, this bookstore over here, guess what they're carrying? They went to the bookstore and said, “Hey, are you still carrying these books? Here, you've got a situation where you've got a couple of insurers who need to stay in the good graces of their regulator.”

And when the regulator says, oh, we think it would be a bad idea to continue issuing these types of policies, well, most of those policies are exceptionally lucrative, excuse me, their incentive to stand up for some third-party speaker isn't that high. And it's interesting because in the case the second circuit suggested that all Vullo was doing was saying, “You can't continue to underwrite these illegal policies that the NRA would offer.” But the truth of the matter is, while they allowed the companies, the insurance companies, to continue doing business with the NRA and insuring the NRA, they basically made any underwriting of any NRA-sponsored products unlawful under these consent decrees, including what would be lawful products.

So, that's another kind of form of informal pressure based on disagreement with the NRA's viewpoint.

Bob Corn-Revere: I think that's right. I mean, I don't think anybody in the case questioned whether or not the state could regulate the insurance products that led to the investigation and in some cases, sanctions. That was never in question. It was really a question of what tactics were being used in addition to whatever investigations took place directed specifically at the NRA's political viewpoints. And frankly, I don't think it's really possible to separate them out into necessarily discrete acts because you had one specific meeting with Lloyds of London where they were told that the state would go easy on them if they stopped doing business with the NRA.

You then had consent decrees with other insurance companies where they were told that if they entered a consent decree where they would do no business with the NRA for any product, legal or illegal, in any state, not just New York, then they could have these consent decrees. And then you had a public campaign, a press release by the governor saying that anyone doing business with the NRA sends the wrong message. I think you take those actions as a whole and an integrated campaign to try and suppress a viewpoint, a political viewpoint that the state doesn't like.

But even if you divided them down, I don't think it changes the result. It's interesting to note that the federal government filed a brief and argued in front of the court in at least partial support of the NRA, claiming that they thought that the state crossed the line with the meeting, but not necessarily with the other actions. And the position of the solicitor general was that the court should restrict jawboning of private speakers when it crosses that line, but it should take care not to draw that line too broadly so that you eliminate all efforts by the government to persuade.

And so it tried to distinguish between the meeting and the other activities. But I think the other activities really reinforced what was the kind of message that was delivered at the meeting. And that's something that did come up at the argument as well.

Nico Perrino: Yeah, we need to move on to the other cases, but I'm gonna ask lawyers to do something they never like to do, which is predict how this one will come out. Aaron, do you wanna venture a guess?

Aaron Terr: I will predict that it will come out in the NRA's favor. My favorite part of the argument was actually the end of the solicitor general's argument when Justice Alito said, “You said in your briefs that this isn't a closed case. Do you stand by that?” And the attorney for Vullo said, “I do.” And then ACLU attorney David Cole, representing the NRA, went up for his rebuttal and said, “I agree with my friend one point. This case isn't close.”

Nico Perrino: Well, let's turn to the case that was argued before NRA v Vullo, which Bob has referenced. And I should note, Bob was in the audience for the arguments of all these cases that we're gonna discuss today. Bob, were you there for the social media blocking cases as well?

Bob Corn-Revere: I was, yes.

Nico Perrino: So, we've got kind of firsthand recounting of what transpired. And then Bob, as he told me in the kitchen at FIRE's office the other day, also likes to go back to the transcript because you often learn more from gonna the transcript and hear things differently than you do in the audience. So, Murthy v. Missouri, previously known as Missouri v. Biden, was argued again on Tuesday, March 19th. It had multiple plaintiffs, led by the states, I believe, of Missouri and Louisiana, who claimed that numerous federal agencies and officials had engaged in censorship by pressuring social media companies to target, deplatform, shadow ban, various sorts of speakers.

Conservative leaning speakers surrounding the 2020 presidential election, people who challenged the kind of popular and governmental narratives surrounding COVID-19 and masks and the origins of COVID-19 and vaccine efficacy. So, this is very similar to NRA v. Vullo. To what extent does government, I don't know, pressure on private entities constitute a First Amendment violation? Government pressure to censor constitute a First Amendment violation. Bob, the facts of this case, I think, were a little bit more difficult for the states of Missouri and Louisiana than NRA v. Vullo. You and I were kind of talking separately about that in FIRE's kitchen, which I might go back to.

You know, apparently, a lot of good conversations happened in FIRE's kitchen. It was just a tougher argument because the facts underlying it where I think more difficult, but the same principle applies.

Bob Corn-Revere: Nico, you have a gift for understatement. Yeah, the facts were far more difficult. For one thing, as we mentioned in the NRA case, there were a few letters, a press release, and a meeting. You had some very discreet points of fact that would determine whether or not the government went too far. Here, you had a much more complicated situation because you were trying to look at what caused social media platforms to make the moderation decisions they did. And that was based on a 20,000-page record previously released of the Twitter files, which indicated some of the background pressures that were being placed on social media platforms at the height of the pandemic over allegations of disinformation, of anti-vaccination information, and of various hot-button issues.

And this was all stewing in the juices of the controversy over whether or not social media platforms were canceling conservative voices. And so this is all going on in the background. It all involves the same kind of basic Bantam Books issue of whether or not the government is placing unconstitutional coercive force on these platforms. But there was an additional issue that Vullo didn't have, and that was, when do you measure when there's excessive cooperation between the government and private speakers, and when does that violate the Constitution? And so that was the second issue that had been decided at the district court and the Court of appeals that was in front of the Supreme Court.

And so it made for a much more complicated argument over procedural details like standing, as well as the merits of the question.

Nico Perrino: So, I wanna ask, or turn to a question that justice Elena Kagan asked during oral argument. I'd like any of you to chime in who have thoughts here.

Female Speaker 2: And if I ask you for the single piece of evidence, and maybe this is the piece that you were describing earlier, I just wanted to make clear what your answer was. The single piece of evidence that most clearly shows that the government was responsible for one of your clients having material taken down. What is that evidence? And what does it say about how the government was responsible?

Nico Perrino: And the case that kept coming up during argument was this case of Jill Hines, who was a Louisiana resident and anti-vaccine activist. She runs a number of Facebook pages. One was called Health Freedom Louisiana. Another was reopened Louisiana. And her argument, I believe she's one of the plaintiffs in the cases, or in the case, excuse me, was that after the White House embarked on a campaign, a pressure campaign, to get these social media platforms to take down certain health information that they perceived to be misinformation, they embarked on that campaign in July of 2021. Her Facebook groups were shut down by the platforms.

She alleges that this was due in part because she posted content from Robert F. Kennedy junior, who's anti-vaccine activist, also a presidential candidate this term, and is one of 12 people who were referred to as the disinformation. So, she traces her deplatforming to a May 2021 email from the White House to Facebook saying that it's dedicated, this is Facebook's dedicated vaccine hesitancy policy didn't seem to be stopping the disinformation dozen and that she was deplatformed after the White House kind of said, “You need to do more to enforce your policy.”

So, I'm gonna ask you guys, because this case kept coming up, it's like, is that their best argument for an example of government coordination with social media companies resulting in user content being taken down?

Ronnie London: Well, the question is not, is that the best example of government coercion and content being taken down? The question is that the best example of the most direct effect on one of the plaintiffs to therefore confer standing upon her for the court to reach the merits? So, while there might be a great case of even more obvious government coercion, and by the way, not to suggest that's not a fairly obvious case of it, but there may be even stronger cases in that 20,000-page record of the government coercing one of the platforms to take something down, this question really goes to standing, and that is, can you show a direct line from the government act whether it's coercive or not?

So, long as it's allegedly coercive and you can get to the merits question against one of these specific plaintiffs. And that's what that question is about. And I don't profess to know within the 20,000-page record whether that's the best example of a direct impact one of the plaintiffs, but it's the one that the advocates seem to think was their best example.

Nico Perrino: Well, Justice Kagan said –

Female Speaker 2: I mean, a lot of things can happen in two months. So, that decision two months later could have been caused by the government's email, or that government email might have been long since forgotten because there are a thousand other communications that platform employees have had with each other, a thousand other things that platform employees have read in the newspaper.

Nico Perrino: And then there are also a lot of justices who were saying during the oral argument that the government sent certain content to the social media platforms, kind of suggesting they should take it down or pressuring them to take it down, and then they didn't. So, Bob, it sounded like you had a thought here.

Bob Corn-Revere: Well, yeah, I mean, that's the real difficult with any kind of backstage censorship effort like this. Anytime you have something going on in the background that contributes to editorial decisions, you're going to have real difficulties of proof. We would know about none of this if it had not been for the release of the Twitter files that led to this litigation, which then went through discovery. And so you had a record where you could try and link up these instances of government pressure with decisions. But lining up a specific editorial decision with a specific email or a specific directive or whatever else that you're talking about is really a really difficult task.

And so there was some discussion, actually, quite a bit of discussion, more than I would have expected from both sides of the bench during the argument about what the measure is for showing standing, for showing the two buzzwords are traceability and redressability, tracing the harm to the particular government act and then tracing redressability, showing that your remedy would actually make the harm go away. And so, on the one hand, you had justices Sotomayor and Kagan, and to a certain extent, Justice Jackson pressing for the smoking gun, the piece of evidence that illustrated that this was really the government causing these actions to be taken.

Because in fairness, as Justice Kagan pointed out, these platforms are already moderating content, and they're moderating in these various areas of disinformation and of inflammatory information and so on. So, how do we know that when the editing took place, when the moderation took place, it was government pressure that was the cause of this? On the other hand, you had Justice Alito and to a certain extent, Justices Gorsuch and Thomas pressing for more of an approach that you would have in, say, civil rights cases, where you look at a motivating factor, where you have a burden-shifting analysis.

If you can show that there was a general motivating factor for making a decision that could have violated someone's rights, does the burden then shift to the defendant to show, “Well, no, that wasn't, in fact, the reason why I did that?” So, you have those two different approaches being advocated during, or at least questions being asked about that during the oral argument. And then somewhere in the middle, you have Justices Kavanaugh, Justice Barrett, and Chief Justice Roberts, who also asked about these issues, but it was less clear where they were coming down on that question. So, it is a really complicated factual analysis, and how you try and determine whether or not the case was made will depend on what test you apply to it.

Nico Perrino: Yeah, Justice Barrett, I'm glad you brought her up. She asked a question, and I'll turn to it now and then maybe go to Aaron for his response.

Female Speaker 3: So, this might be a question about the distinction or the interplay between Bantam Books and just state action more generally. In Justice Thomas's questioning of you towards the end, he was talking about the distinction between encouragement and coercion. So, what if Facebook said, and this is counterfactual, it's not what happened in this case, but what if Facebook said, “You know what? We're partners. We're on the same team. This is a once-in-a-lifetime pandemic, and we think it would be most efficient and most helpful for the public good for us to just turn over our content moderation to you.” That's not coercion. That's voluntary on Facebook's part. But wouldn't it be state action then?

Aaron Terr: Well, that, and the solicitor general made that argument, too, where he said he said, well, the platforms were choosing to cooperate with government agencies like the CDC. They wanted to take down misinformation and they wanted the government's input on what information that they thought was false or harmful. But I really think, I think the justices, they went really hard on the Louisiana solicitor general I think during his oral argument, but not hard enough on the deputy solicitor general, Brian Fletcher. They went after the Louisiana solicitor general for allegedly destroying the record in his brief.

But I think Fletcher played a little fast and loose in his argument at times. I mean, there was one point where Justice Kavanaugh said it struck him as unusual that government officials would call themselves partners with social media companies. And the solicitor general conceded it might seem unusual, but that the companies, again, the companies themselves say they wanted feedback and relevant information from the government. And while that may be true in some instances, when you look at the record, you also see evidence of the platforms caving to unwanted pressure from the government.

In particular, there were internal emails at Facebook showing that the platform changed policies not because it wanted to, but because it said it was under pressure from the Biden administration, and they clearly just didn't wanna piss off Biden administration officials. So, yeah, I don't think that the first Amendment would prohibit platforms from going to the government at all to seek their feedback or input on whether particular content should stay up. But the record in this case, I think, did have evidence that there was coercion, at least in some instances, from some agencies to take down certain content or change policies, and that the platforms were not always willing participants in a partnership with the federal government.

Nico Perrino: One of the big quotes that came out of this oral argument that got a lot of attention was from Justice Ketanji Brown Jackson. And I'll play her quote here.

Female Speaker 4: I mean, what would you have the government do? I've heard you say a couple times that the government can post its own speech, but in my hypothetical, “Kids, this is not safe. Don't do it,” is not gonna get it done. And so I guess some might say that the government actually has a duty to take steps to protect the citizens of this country. And you seem to be suggesting that that duty cannot manifest itself in the government encouraging or even pressuring platforms to take down harmful information. So, can you help me?

Because I'm really worried about that, because you've got the first Amendment operating in an environment of threatening circumstances from the government's perspective, and you're saying that the government can't interact with the source of those problems.

Nico Perrino: So, I mean, polling, and I think another place she talked about First Amendment hamstringing the government, kind of a broad, big picture question. She's asking, like, can the government take a once-in-a-lifetime or a once in a century health problem and communicate a message without violating the First Amendment, or talk to private entities about helping to communicate that message and counteract opposing messages without it becoming a First Amendment problem?

Bob Corn-Revere: Yes, but she framed that question about the once-in-a-lifetime pandemic issue with a hypothetical that she brought up about kids taking the tide pod challenge. So, it was basically any kind of sort of dangerous speech out there. I took her questions to reveal more than anything else that there can be a steep learning curve for new Supreme Court justices when it comes to absorbing First Amendment doctrine because the questions that she asked didn't reveal a great amount of familiarity with the way the First Amendment works.

And hence the statement that got a lot of play and that you referred to where she says, “My biggest concern is that your view has the First Amendment hamstringing the government in significant ways in the most important time periods.” I've been practicing First Amendment law for a while, and I thought that was kind of the point, that the First Amendment does hamstring the government when it tries to use coercive power. And Justice Jackson's questions also suggested that she believes that if the government demonstrates a compelling interest of whatever that might be, that's really all you need to be able to then use the power of government to take down speech that for one reason or another might be considered harmful.

So, I'm hoping that other more experienced justices end up writing whatever opinion results from this court.

Aaron Terr: Well, and there's an unspoken context to that question, and that is you're talking, by definition, only about protected speech. Because she's saying can the government weigh in on the tide pod challenge or kids jumping off of higher and higher place spots to get TikTok clicks, or this once-in-a-lifetime pandemic. Let's be clear. If the speech was illegal, if it was unprotected speech, then the government can not only say, “Hey, we think you should take that down,” the government could take the appropriate actions to regulate or punish the speech because it's unprotected. So, by definition, what she's talking about is only protected speech.

And her question then becomes, where you have protected speech, when is the government allowed to come in and say, “That shouldn't be on the platform, and you're kind of hamstringing us from doing so?” And as Bob says, well, of course we are. That's, again, as Bob says, what the First Amendment is designed to do.

Bob Corn-Revere: And that, once again, highlights the difference between formal kinds of regulations, where you're using established legal processes to be able to impose some measure of government control, because, after all, the First Amendment is not absolute. It doesn't cancel all government action. And as distinguished from informal regulation, where there are none of the protections of due process.

Ronnie London: I don't think anyone is arguing that the government agencies can never contact social media companies, even about protected speech. At all. But again, you go back to if we use the four-factor test that I mentioned earlier, where you look at the nature of the government communication, are they kind of issuing demands and using strong language, is it reasonable to perceive it as a threat? Is there some kind of implication of adverse consequences if they don't comply? And again, when you go back and look at the record, in this case, there might have been some cases where an agency was just flagging information saying, “Do what you will with this.”

But then you look at other evidence, particularly from the White House, where you had officials saying, “I cannot stress the degree to which this needs to be resolved immediately,” and saying their concerns are being shared at the highest, and I mean highest levels of the White House. And then officials would often follow up with the platforms to see if, in fact, they did remove content. And also remember that all this is all against the backdrop of threats to repeal section 230, immunity from liability for third-party speech on the platforms, and threats to bring antitrust actions, and to otherwise hold the platforms legally accountable for not doing enough to take down speech that the government doesn't want the public to see.

So, when you factor all that in, then it becomes much easier to make a case for coercion. And I think that the actual facts in the record are different from the hypotheticals that Justice Jackson was proposing.

Nico Perrino: And there's a couple of those contextual factors that I wanna talk about, and one of them is is the communication from the government actor to the speaker or platform or third party who you're trying to influence to affect someone else's speech. Is that happening in public, above board, where everyone can see it? Or is it happening through some kind of back-channel communication that nobody knows is happening unless you have someone who's willing to spill a cache of documents out on the public so we can discover it happened? The fact that you're doing it clandestinely should always, in my opinion, mitigate in favor of coercion. Okay.

Ronnie London: And that also underscores, by the way, the need for transparency in the space for the government to be transparent. And FIRE has come out and supported the idea of legislation that would require the government to publish publicly its communications with social media platforms that pressure or request that the platforms take down speech, user speech. That way, this won't all be happening in the dark, and we can look at the government's communications and determine when they might be coercive and therefore violate the First Amendment. And also just, I think another thing to point out here is putting legal issues aside for a second.

At the end of the day, jawboning, even jail bonding that doesn't violate the First Amendment is, I think, should be of concern to people, because social media platforms and companies and other industries, especially heavily regulated industries like banking or insurance companies like we were talking about before, they have a strong incentive not to piss off the government. And there's all this talk among government officials about rescinding immunity from liability under section 230 and bringing antitrust actions. So, the concern is, even if government officials make a suggestion, the platforms to censor speech, the platforms are likely to do it even if it's not coercive.

They're likely to do it just because the cost of deleting some tweets from some relatively unknown user is pretty low, whereas the potential cost of rejecting the government suggestions may be pretty high in terms of potential future retaliation or regulation. So, given the choice between pissing off the all-powerful federal government and pissing off a single user out of billions, it's easy to see which way the incentives point.

Nico Perrino: Well, that's a good segue, because we've got two more cases or three more cases. Four more cases, actually. We got the two NetChoice cases and two social media blocking cases. I do wanna pivot. I know there's a lot more to say on this, and I think, Aaron, you kind of set it up well, the threat of regulation of social media companies is exactly what we saw in the NetChoice cases. But I do wanna end just like we did with the first case discussed by reading the tea leaves. How do we think this one's gonna turn out in concert with NRA v. Vullo.

We mentioned Murthy's facts were more difficult. The arguments seemed to be more challenging. Bob, what do you think?

Bob Corn-Revere: This one's much more difficult to predict. And by the way, I don't generally make predictions. Even when it seems clear from the argument which way it might have gone. It's really hard to tell because there was so much discussion of background issues, procedural issues like standing, that there are a number of potential off ramps that the court has that it may take to avoid a clear decision on the merits. It's fascinating that it is paired with the NRA case because the court may have the occasion to say something more definitive on the issue of jawboning generally, but then not issue as definitive a ruling in Murthy, given the more complicated record.

It's my hope along, as we expressed in our amicus brief in the case, that the court will take up the merits of the issue and decide and do it in a way that reinforces the principles of Bantam Books that underlie both cases.

Ronnie London: And Nico, you're gonna go back and cut out any of our predictions that turn out to be wrong, right?

Nico Perrino: Yes. We're gonna actually cut them up and lead with them on social media. So, let's turn to the NetChoice cases now, and folks will remember we actually did do a recap of the NetChoice cases right after oral argument on Monday, February 26th. So, we probably won't dive as deeply into them as we did NRA v. Vullo and Murthy v. Missouri, which we hadn't covered previously. We covered them prior to argument, but we hadn't covered them after the argument. And just to refresh folks' memory, there are two cases here, one out of Florida, one out of Texas.

The one out of Florida is Moody v. NetChoice, in which the state of Florida enacted SB 7072, which banned large social media companies, defined large by revenues exceeding 100 million or at least 100 million monthly individual users. It banned them from moving accounts of political candidates or suppressing posts about them. The motivation for this is the banning of Donald Trump’s Post on January 6th. And it also said they can't take any action to censor, deplatform, or shadow ban a journalistic enterprise based on the content of its publication or broadcast. The motivation for this was some of the social media platforms taking down the New York Post's article about Hunter Biden's laptops.

And the law also says that it must apply these standards in a consistent manner, among some other things. So, that's Florida. Right? And then we also have NetChoice v. Paxton argued on the same day, much like NRA v. Vullo and Murthy V. Missouri were. And this law prohibits large social media platforms from censoring speech based on the viewpoint of the speaker. Bob, we'll begin with you again, because you were in the audience here. First blush, takeaways from the argument.

Bob Corn-Revere: Well, again, I'm not gonna make a prediction on where this is coming out. What I will say is that, again, this is complicated. And it's complicated because you can't divorce these cases from the political context in which they arose. As you mentioned, the NetChoice cases arose from legislation adopted by red states, largely in reaction to deplatforming of Donald Trump and other allegations that conservative speakers were being limited. And what's interesting is that the position of those states is that it's perfectly fine for the government to insert itself or perhaps even take over the social media moderation process and enforce these various kinds of restrictions.

But that stands in sharp contrast to the argument that was made by the attorneys general of Louisiana and Missouri in the Murthy case, where they say, and they actually said this in their briefs, that informal pressure on the moderation policies by the Biden White House is the worst First Amendment violation in our history. Now, it's impossible to reconcile those two positions. Either if the government is exerting pressure, either formally or informally, it's a First Amendment violation or not. And the only thing that's consistent is the political position of the red state attorneys general and the red state legislatures that are wanting to go after big tech in various ways.

And what's even more interesting about it, and we pointed this out in our amicus brief, is that the attorneys general behind the Murthy case regularly engage in jawboning themselves to try and restrict the speech of private actors. And so there's all of this political noise surrounding these cases, which, getting back to your actual question, Nico, was how is this gonna come out? That political noise also is sort of the environment in which these Supreme Court arguments are taking place. And so you have a lot of questions about which way the conservative justices are leaning versus the liberal justices.

And this actually is one of the things that made this more complicated. As you mentioned, the Florida law was somewhat broader than the Texas law because it applied to all social media platforms defined very broadly. And that could include anything, at least as suggested in the argument from Uber to Etsy, and not just the traditional big social media platforms. And the Texas law was more focused on what you would generally think of as the giant social media platforms like X and Facebook and YouTube.

The question that came up, particularly in the Florida argument in the moody case, was whether or not striking down this Florida law or at least enjoining this Florida law would also strike down any restrictions on basically public accommodation rules for whether you're talking about an email service or a Telegram or a shopping service like Etsy. And so it wasn't just the conservative justices that were concerned because of the political valence here, but also the liberal justices because they don't wanna see public accommodation law being completely undone by the First Amendment. And so you had that going on at the same time.

Nico Perrino: Yeah. So, you had different justices from kind of different political or ideological perspectives kind of asking the same question. Justice Barrett asked Paul Clement, who was the advocate for NetChoice.

Female Speaker 5: But Mr. Clement, that's one of the things that's hard for me about this case, is, let's posit, that I agree with you about Facebook and YouTube and those core social media platforms. Don't we have to consider these questions Justice Alito is raising about DM's and Uber and Etsy because we have to look at the statute as a whole? And, I mean, we don't have a lot of briefing on this, and this is a sprawling statute, and it makes me a little bit nervous. I'm not sure I agree with you about DM's and Gmail. Just, it's not obvious to me in any way that they can't qualify as common carriers.

Nico Perrino: And then you have Sotomayor saying.

Female Speaker 4: Mr. Clement, I'm now sort of trying to take all of this in. And I think that I came into this very differently than you have. I came into this thinking there are different functionalities by websites. So, some host news, like the news feed in Facebook, some hosts like Justice Barrett was talking about, and others Gmail, or where they're just letting people contact each other, direct messaging. And I was thinking that since I think, rightly this law seems to cover all of that it's so broad, how that might have some plainly legitimate sweep.

Nico Perrino: Ronnie, what are your thoughts?

Ronnie London: Well, I mean, let's be clear. I mean, this law or both these laws were designed to do one thing, and that is affect what the social media platforms, however you define them, publish, right? If you look at the circumstances under which these laws were proposed and adopted, it has nothing to do with whether Google is being viewpoint discriminatory in who it offers Gmail services to. I mean, the fact that it's a badly drawn statute should not benefit the government to say, “Hey, look, now we managed to have a legitimate sweep.” That's bullshit. Okay. Under Reed versus Gilbert, the town of Gilbert, you look at two things when you're looking at a content-based statute.

One is it content based on its face? And if it is, you get strict scrutiny. But secondly, you look at the underlying intent, and the underlying intent of these statutes was to, I don't wanna say restrict or forcibly expand. I think either one is probably accurate, the publishing functions of these social media platforms. And to suggest that because there are other functionalities that may or may not be more like common carriage. And you know, I don't think you need to answer that question to answer whether the intent of these statutes under a decision like Gilbert is unconstitutional is neither here nor there.

I think you really look at what the core function of the statute is, and it is to compel speech with which the platform disagrees and would not otherwise publish.

Nico Perrino: Go ahead, Aaron.

Aaron Terr: I was gonna jump in real quick and say also when the justices were referring to the statutes potentially having a legitimate sweep, they're referring to the test for whether a law is unconstitutionally over broad. But they were, I think, misstating the standard because the question isn't whether the law has any legitimate sweep, it's whether the law's unconstitutional applications are substantial in relation to its plain legitimate sweep. So, even assuming that the way Florida's law is worded, it can apply to, like Uber. And let's assume for the sake of argument, it doesn't violate the First Amendment as applied to Uber because Uber is just a ride-share service and not a speech-based enterprise like X or Facebook.

Even then, when you think about all the speech that the law would compel traditional social media platforms to host against their will, talking about millions and millions of posts, it's kind of hard to see how its unconstitutional applications aren't substantial related to its legitimate sweep. So, in other words, if many, if not most of the ways it applies, it violates the First Amendment, it would be unconstitutionally overbroad, right?

Bob Corn-Revere: I think that was in what was otherwise an excellent performance. One point on which I would criticize Paul Clement, and that is he misstated the test as Aaron said. The question isn't whether or not the statute has no legitimate sweep. The question is whether or not it has a substantial number of unconstitutional applications. And what is interesting here, this became almost a fun house mirror image of your typical overbreadth argument, because the whole conversation turned to whether or not you could imagine constitutional applications of this broad statute, which is not the way the analysis is supposed to operate, particularly where, as Ronnie pointed out, the entire reason that these laws were adopted was to restrict the kinds of editorial choices that the First Amendment clearly protects.

Nobody has suggested that they're going to turn off email service for political commentators they don't like or deny a ride service to people. That's just not a thing. It hasn't happened. And so to say that you can imagine constitutional applications, a plain legitimate sweep for a law that was clearly adopted to restrict editorial choices that the proponents of the law dislike, it turned these laws upside down.

Nico Perrino: Well, that would be more of a rational basis analysis, which you don't do in the First Amendment context, right, Bob?

Bob Corn-Revere: Not so much rational basis as they were simply trying to say. Well, actually, the states took the extreme position of saying that there's no First Amendment analysis here at all because you're really just regulating conduct. And they tried to argue that these services are like common carriers, which led to all of the crosstalk in the court about whether or not are some applications more like common carriers as opposed to others. And so there was a lot of confusion surrounding the argument about exactly what it was that was being regulated, particularly in the case of the Florida statute, and whether or not any of those applications would be a plainly legitimate sweep, which, as Aaron points out, is the wrong question.

Nico Perrino: Go ahead, Ronnie.

Ronnie London: And by the way over breath aside, say what you want about overbreadth, but we still have a completely separate and independent basis on which to strike these down by unconstitutional because they unconstitutionally compel speech. I mean, we have 303 Creative. 303 Creative from just the term before last tells us that you don't compel people to speak in ways around particular viewpoints to which they object or with which they're in opposition. I mean, that has nothing to do with over breath.

Bob Corn-Revere: Right. That's where you get to the splintering of the liberal justices, where they see 303 Creative as one that uses the First Amendment to undermine public accommodation law. So, if you can frame this argument as a matter of public accommodation law and confuse that with common carriage, then you can, in some ways, unite the more conservative justices who might be able tolerate these kinds of regulations because of the common political interests, and the liberal justices who don't wanna see the First Amendment expanded to the point that it undermines public accommodation law.

And that's where those kinds of cross pressures that came up during the argument are ones that make this one particularly hard to predict.

Nico Perrino: I'm really glad, Ronnie, you brought up the compelled speech angle, because that gets to another line of questioning that came out of, I believe, NetChoice v. Paxton. So, I wanna turn to that. The idea is, right, that these are platforms, and they platform, different speech or privilege, different speech. In your newsfeed, the stuff that gets fed to users is a deliberate choice on behalf of the platforms, either manually or algorithmically. And so, Justice Gorsuch asked about this in the context of section 230, and I kind of wanna end our conversation about the NetChoice cases here because we discussed a lot of other different angles of these cases on the previous podcasts.

But I think we could have dived into this section 230 question a little bit more. So, Justice Gorsuch, we haven't heard yet from in this podcast, said –

Male Speaker 2: These algorithms arrange, sort, promote certain posts by users and not others. And is that not your, or not yours, but your client's speech?

Male Speaker 3: So, I don't think it's our speech in the way that section 230 talks about the speech. And I think for these purposes, you have to distinguish between the speech that is the editorial function and the underlying user speech.

Male Speaker 2: I understand that, and I didn't mean to suggest otherwise. But there is some editorial speech, your term going on, right?

Male Speaker 3: I think that's right.

Male Speaker 2: So, the carrier would be liable for its editorial speech?

Male Speaker 3: I don't think so. I mean I did actually reread the brief that I filed, at least in the Gonzales case, and I think that you could make a strong argument based on the text of that statute that kind of editorial sort of functioning is not something that causes you to lose your 230 protection.

Male Speaker 2: So, it's speech for purposes of the First Amendment, your speech, your editorial control. But when we get to section 230 your submission is that isn't your speech.

Male Speaker 3: Yes, as a matter of statutory construction, because otherwise, section 230 ends up being self-defeating. Because, again, the whole point of section 230 was to promote that editorial discretion. And this court wrestled with these issues. They're hard issues.

Nico Perrino: Ronnie, I see you shaking your head.

Ronnie London: Think about where section 230 came from, right? So, we have a tradition in this country where when you're talking about something, for example, like a bookstore, you don't hold a bookstore liable for all the books in the store that may be unlawful or the source of liability, for whatever reason. On the other hand, we have newspapers, and the law has always been that when a newspaper publishes something, even if it's third-party speech, such as the heed their rising voices ad on behalf of the civil rights advocates, they could have had liability. And that's why we needed to have New York Times versus Sullivan establish a defamation and libel test.

So, when we got to things like online bulletin boards and the case law started to develop, and the question was, are we gonna treat these bulletin boards, this third party content, this user-generated content that is now being able to be published to the entire world, are we gonna treat them more like bookstores, or are we gonna treat them more like newspapers? And we got a couple of court decisions that were concerning about what the answer to that question was gonna be, and Congress stepped in and said, “No. When it comes to interactive computer services, we are going to grant them immunity from third-party content so long as they don't contribute to what makes it unlawful or altered in a way, is what makes that makes it unlawful or the source of liability.”

That means we are saying that when social media platforms or any interactive computer service does the same thing that a newspaper does, the rule for potential liability is going to be different by a result of statutory impact. Of course, they're engaged in speech while they're doing it. You could no more deny that a newspaper is engaged in speech when it's exercising its editorial discretion than you can when a social media platform is exercising their total discretion. The fact that the liability analysis differs based on a statute has nothing to do with whether they're engaged in protected speech.

Nico Perrino: Well, Alito kind of asked a similar question.

Male Speaker 2: And I don't understand the rationale for 230 if it wasn't that, you can't be held responsible for that, because this is really not your message. Either it's your message or it's not your message. I don't understand how it can be both. It's your message when you wanna escape state regulation, but it's not your message when you wanna escape liability under state tort law.

Nico Perrino: Bob, it sounded like you kind of wanted to get in.

Bob Corn-Revere: Yeah, there's a lot of angst about that, particularly among conservatives who say that the social media platforms are trying to have it both ways, as implied by that question. And the point is, the law creates that presumption in order so you can have hosts for third-party speech. It recognizes both that if you host third-party speech, if you made them responsible for any potential liability, no third-party speech would ever be carried. And so that's why you have section 230 C1, which says that it's not responsible for third-party speech. But you also have section 230 C2, which acknowledges that these platforms do make editorial decisions.

They have terms of service which they apply in various ways, both by having human review of material that they want on their platform and machine review of the posts to try and enforce those terms of service. And various of the justices, Justice Kagan, for example, acknowledged that these platforms do apply editorial standards. And that's how you might go to bed one night and have Twitter that you're happy with and wake up the next day with X that you're not happy with because they have changed their editorial standards. They're both conduits, and they are editorial actors.

Aaron Terr: Yeah. At one point, Justice Kagan said when Twitter changed to X under Elon Musk, users were getting a “very different newspaper.”

Ronnie London: Yes. That question either suggests a misunderstanding of what it is 230 does and what the nature of speech the first amendment protects is, or there's something else going on behind the question that is designed to make a point that remains to be seen when the decision comes out, if that answer plays any role.

Bob Corn-Revere: One of the things that is lurking behind that question is whether or not this case can be decided just on statutory grounds and whether or not you have to reach the constitution issue.

Ronnie London: Oh, yeah, we've raised that in the previous podcast.

Nico Perrino: I have the idea section 230 would preempt it.

Ronnie London: Section 230 preempts both these statutes. Everyone drive home safe. Don't need to answer the constitutional question.

Bob Corn-Revere: On the other hand, it wouldn't be bad to get a good constitutional answer.

Ronnie London: No, it wouldn't. But, I mean if the question is, does 230 resolve this? I think there's a pretty good argument it does.

Nico Perrino: All right, so those are the oral arguments. I wanna spend five, 10 minutes tops talking about decisions that we got in two cases involving social media blocking. So, this is the idea that you have public officials, government officials who have social media accounts. Sometimes it's clear that they’re government accounts, sometimes it's like they use these as kind of a mix of personal and governmental. So, like, they'll be talking about their kids or their birthdays in one post and maybe like some pronouncement that they're making about some law that they have control over in another post.

And these two cases are Lindke v. Freed. And what's the other one, O'Connor-Ratcliff v. Garnier. And we got decisions in both of these cases. Lindke v. Freed involved James Freed, who had a popular Facebook account that eventually reached the 5000 friend limit. And so he converted his profile into a page which allows you to have more people following it, and it, as a result, became public and anyone could follow it. And he designated this page as public figure, and he would share, as I mentioned, personal updates about himself, but then also some information related to his work as city manager of Port Huron.

The other case, you had members of the school board, this is in Poway Unified School District in the city of Poway, California. They were running for school board. They had these campaign pages where they would eventually update with their official titles and use the pages to post about school district business and news. And then you had some parents who had children in that school district who were critical and would post and respond and ultimately got blocked or had their comments hidden or deleted. Aaron, I wanna turn to you here because we finally got some clarity on what social media blocking is acceptable and unacceptable for public officials.

These things have been kind of stewing in the ecosystem for a long time. So, Donald Trump was notorious for blocking folks. There were some cases around that. So, like, where did the justices come out in this case unanimously?

Aaron Terr: Yeah. Unanimous decision establishing a new test for determining when government officials are using social media in a way that constitutes state action. And therefore, the First Amendment applies to how they use social media and particularly how they deal with public comments on their posts, because the First Amendment prohibits government officials from censoring speech based on its viewpoint. So, if an official is deleting posts or comments on posts on their account or blocking critics because of their views, and they're engaged in state action when they're doing that would violate the First Amendment.

But if it's just a purely personal page, then just like any other American, you can delete comments and block people to your heart's content so that the test established by the Supreme Court says that government official's posts do constitute state action, are attributable to the state if the official, one, possessed actual authority to speak on the state's behalf, and two, purported to exercise that authority when actually speaking on social media. And so it, to some extent, splits the difference between the tests that the ninth Circuit and the sixth Circuit used in these two different cases.

But overall, it's a pretty good outcome that the court smartly rejected the sixth circuits bright line rule that appeared to say that an official's use of social media state action only when the government mandates funds or operates the account. And the problem with that approach, as Justice Barrett wrote in the majority opinion, is an official could insulate government business from criticism just by conducting it on a personal page. But what should really matter is how is the official actually using the account, not just the label that they place on it. And so it's another kind of fact-intensive inquiry that you have to look at.

What's the source of the official's actual, apparently, authority to speak on behalf of the state or actual authority to speak on behalf of the state? And then the way that they use the account and post on the account, are they actually purporting to exercise that authority?

Nico Perrino: I think it's a pretty helpful test and it's pretty clear. But in its application, I think it's where it can get dicey, given what tools these social media platforms actually give you to choose who sees what right. So, a lot of these social media platforms allow for just blanket bans. And I think it's clear that if you're posting personal stuff and government official stuff, then you can't use a blanket ban, is, I think, the takeaway from this. But there are other tools within Facebook, I don't know about X, that allow certain people to see certain posts.

So, you post one thing and it's personal and you have this list of people who can't see it. You have this other post that's government official professional, and you have to allow everyone to see it, seemingly the takeaway from this decision. But then you also have this comment feature on social media. Right? So, if it's a personal post, you can remove comments, but if it's a government official post that satisfies those two requirements, you can't remove any comments. Bob, am I kind of reading into that correctly? It requires an understanding of the platforms.

Bob Corn-Revere: You're correct to note that this is a multifactor test, and that's one of the things that we had advocated for in our amicus brief, that it can't be the bright line rule that the sixth Circuit had advocated because that allows public officials who use their personal accounts for official business an easy way to avoid having to play by constitutional rules. And so if you pull back a minute and think of the context in which these two cases came to the court, they were the stand-ins for the Trump case that had gone to the second Circuit when President Trump was still in office. And the question was whether or not his use of Twitter account in blocking critics on Twitter violated the First Amendment.

And the courts had said, yes, it does, because here's an official using this page for official purposes, and it applied a multifactor test, the purpose and appearance test. And before it could get to the Supreme Court, Donald Trump left office. And so the case was declared moot. And so you have these two cases coming along, reaching opposite conclusions. And the question was whether or not this was going to create sort of an easy avenue for public officials. And the important thing to know is that most public officials have both personal accounts and official accounts, and many of them members of Congress, people at all levels of government, will do more of their official business, or a great deal of their official business on their personal sites.

And so the question was whether or not they could avoid critics by operating that way, or whether or not they were gonna be subject to constitutional rules. And here, the court, I think, did do a good job of taking a little bit from both of the two courts, the decisions that were in front of it, and saying, if you are gonna use your personal page for official business, you take the risk that it might be subject to First Amendment limits on who you can delete. And that's going to be, if you have the authority to speak for the government and you happen to use your personal page for that, we may find you liable.

Ronnie London: Well, let me come back to part of your nuance. And the example that you gave Nico, where you posited it as kind of a binary, you can take it down. You can't take it down. Depending on whether you're using it for public or for private purposes, let's assume for a second that you are using it for public purposes. The rule isn't, as I understand it, not that you can never take something down. I mean, what it means is you have opened up a public forum of some kind, and you can create a limited-purpose public forum within your comment feed where you say, “Okay, you can comment on things pertaining to my role as mayor,” or whatever it is.

And if somebody goes off on a tangent about what an awful person Trump is, or even further afield, what a good investment vehicle might be, you can still take those down. You just have to operate within the parameters of public forum law. The other thing I wanna note about the test, as Aaron articulated it, is when it comes to whether or not you're operating your account as a public official or a private citizen. One of the things they look at is whether you have any authority as a public official and whether you purport to, in fact, be exercising it.

One of the things, there was one line in there that the court mentioned, it's not just whether you have the authority, but even if you don't have the authority, but you are unlawfully claiming the authority, that still counts. And the reason I found that interesting is, and I'm gonna bring us back to the beginning of the podcast, is when you start talking about when does a government actor engage in coercion. If you're looking at whether they have any power to do something to the entity that they're leaning on, it's not just do they have the power, it's whether they give the impression that they have the power. And I'd love to see that line from the social media blocking cases find its way back into Vullo and maybe Murthy.

Nico Perrino: Well, I love when we come full circle, because we're at the end of the podcast. Unanimous decision. Again, Aaron, I thank you for recapping it. And I thank you, Ronnie and Bob, for contributing as well, and Bob for being our first-person spectator in the court during all these arguments. I should say again, it's Ronnie London, FIRE's general counsel, Bob Corn-Revere, FIREs chief counsel, and Aaron Terr, our director of public advocacy. I am, of course, Nico Perrino. I host this podcast. It's produced by Sam Niederholzer and myself, and it's edited by a rotating roster of our FIRE colleagues, including Aaron Reese, Chris Malpey, and Sam. You can learn more about So to Speak, by subscribing to any of our social media channels.

Again, these videos of these conversations in almost every case are on our YouTube channel, so you can find us there. We're also on X, where videos of these podcasts also live since Elon Musk has added that new feature where you can search free speech talk and find us. And if you have feedback, you can email us at sotospeak@thefire.org. And as I said at the top of the show, please consider becoming a FIRE member by donating at thefire.org or subscribing to become a paid member on, So to Speak, Substack. That also gets you a FIRE membership, by the way, and that in both cases gives you access to member-only calls.

And I believe our next one, again, is going to be, I’m scrolling to the top of my notes, Tuesday, April 9th Bob will be back for that.

FIREs legal director Will Creeley will be joining us, and the conversation will be answering many of your questions. We'll recap some of these cases, talk about FIREs litigation and take questions throughout. So, please come to that members-only call with your questions. And with that, I'll leave it there. I'll thank you all. And until next time, thanks again for listening.