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 a uncensored look at the world of free expression through personal stories and candid conversations. Today, we are reviewing the 2024 Supreme Court term looking at the First Amendment cases. Yesterday, we got NetChoice handed down from the court in a 9-0 decision. Joining us to discuss these cases is Robert McNamara who is the Deputy Litigation Director for the Institute for Justice. Bob, welcome onto the show.

Bob McNamara: Thanks for having me.

Nico Perrino: To his right, we have Ronnie London who is FIRE’s General Counsel. Our listeners should be well acquainted with him. Ronnie, welcome back onto the show.

Ronnie London: Thanks, Nico.

Nico Perrino: And then to his right, we have Bob Corn-Revere who’s is FIRE’s Chief Counsel. Bob, welcome back onto the show.

Bob Corn-Revere: Always happy to be here, Nico.

Nico Perrino: So, we’re gonna try and take this in reverse chronological order with one exception, and our listeners will get that soon because we’ve discussed some of these cases back on past podcasts. But we haven’t discussed, for example, the NetChoice case. We haven’t discussed Murthy. We haven’t discussed Gonzalez v. Trevino. There’s some cases we need to get to, and I’m gonna try to frontload them, and then we will get back to some of the cases that were decided earlier in the term.

I wanna remind folks that we are recording this 24 hours after NetChoice came down. So, we are still digesting the opinion; and, hopefully, during this conversation we can think aloud about it, its implications. Also, this coming Monday, July 8th, we will have a live webinar for FIRE’s members to participate and ask questions of their own about this past Supreme Court term. Ronny, I think you’re participating in that. We also have Will Creeley, FIRE’s Litigation Director – or Legal Director, excuse me – and Darpana Sheth, FIRE’s Vice President of Litigation.

So, without further ado, let’s move onto the NetChoice cases. We have two cases here, one stemming from a law in Florida, one stemming from a law in Texas. One decision from the court. It was 9-0 with some somewhat testy concurrences. They dismissed the cases, or they remanded them – vacated or remanded the cases because they say that these lower courts did not review the laws properly as facial challenges. Bob, I wanna start with you. What is a facial challenge, and why did the courts say that these lower courts didn’t look at them properly?

Bob Corn-Revere: Well, a facial challenge is one that challenges the law, basically, on its own terms and asks the court to conclude that it is unconstitutional either in all of its applications or in the First Amendment context in too many applications that would violate expressive rights. So, the court has permitted these kinds of challenges to go forward for many decades, but it is not the favored approach by the court.

And that’s one of the things that all of the justices in the NetChoice decisions made clear except the majority, the six justices who formed the core of the opinion, basically said it might not be favored. But here’s the process that you would use for doing a facial challenge. It sets a fairly high bar for that but, nonetheless, says that in this context, particularly in a First Amendment context, you can bring these challenges, and it sent the case back to the 11th and 5th Circuits to do a do-over.

Nico Perrino: To assess them properly.

Bob Corn-Revere: Yes.

Nico Perrino: So, again, a facial challenge is just a challenge to the law.

Bob Corn-Revere: You’re challenging the law as a whole.

Nico Perrino: So, it’s not, for example, how the law was applied in a specific circumstance to say Meta or – well, I was about to say Instagram, but Instagram is owned by Meta – or X, for example, or TikTok.

Bob Corn-Revere: That’s right.

Ronnie London: Or would apply to a certain subset of applications.

Nico Perrino: So, the courts sent these down. But in the majority decision, you get a lot of stirring language about how the 5th Circuit and – what was it – the 11th Circuit should analyze this case from a First Amendment perspective.

Bob Corn-Revere: Well, that’s right. The court, while it didn’t decide the ultimate First Amendment issues and didn’t decide whether or not these laws are constitutional, it did a serious course correction, particularly for the 5th Circuit to make clear that when the courts do look at these issues anew that they do so under a clear set of governing First Amendment principles. So, it made a number of things quite clear, so clear that even the 5th Circuit can’t get it wrong the next time around.

So, they include things like the First Amendment applies to new communications technologies. That is the rule even in the case where you have advancing technology, and you have new and novel applications. It made it quite clear that it applies to social media. It also made clear that when social media is making editorial choices, moderation choices, where they decide what information to post or not to post or to downgrade, that those are editorial choices, and editorial choices are protected by the First Amendment.

It also made clear something that the 5th Circuit got completely wrong the first time around is that the First Amendment’s protection of speech applies to government actors, not to private actors. The 5th Circuit had concluded that the moderation choices by social media platforms were censorship in the same sense, really, as censorship by the government. And Justice Kagan’s majority opinion made clear that, no, that gets it completely backwards and that when the court goes to reconsider these issues the next time around, it has to apply these First Amendment principles articulated by the majority.

Bob McNamara: And those principles, I think, are right, and it’s nice to see the court articulate them. But NetChoice itself, I don’t think, really accomplishes very much. And I think in part it doesn’t accomplish things because both sides of the “versus” have kinda behaved in ways that made it hard for the court to resolve the case. The first is just the statutes that are being challenged are kind of a mess.

What actually happened is that legislators in Texas and Florida were mad at Twitter for what they viewed as censoring conservative voices. So, they tried to pass a law stopping Twitter from doing that. But the problem with legislating when you’re extremely grumpy is you don’t do a very good job of defining what you’re trying to legislate against.

Bob Corn-Revere: It’s not just from legislators that are grumpy.

Bob McNamara: The problem with legislating, Bob – this is why legislatures shouldn’t do things. But, no, it kinda emerged at oral argument in this case. Everyone’s talking about this as a regulation of Twitter and Facebook. But by its terms, these statutes seem to regulate Etsy. How does this apply to Etsy? The statute is such a mess. It makes it hard to do the sort of facial analysis that Bob was talking about.

Bob Corn-Revere: But that’s more true of the Florida law than it is of the Texas law. The Texas law focused on social media platforms of a certain size. The Florida law applied to internet platforms that could include pretty much anything, and that’s the issue that really did emerge and dominated the oral argument in the case. My concern with this is that the court’s decision sending it back and saying, “You have to have a thorough analysis of what the statute does,” is it tends to reward legislatures for this broad and sloppy legislation.

If they pass a law that says the State gets to regulate everything on the internet, then that places the burden on would-be plaintiffs to say, okay, let’s look at the entire universe of things that this law can lawfully do and compare it to those things that regulate speech that the First Amendment prohibits the government from doing. That’s a real burden for the plaintiffs where really the root problem is sloppiness by legislators.

Ronnie London: Or it puts the burden on the plaintiff to challenge the part of the law that it cares about. That’s what I found a little bit – well, I don’t wanna say silly about this whole thing – but the chiding of NetChoice for the way that they brought this case and for the way the parties and the courts addressed it below.

Look, we all know what the legislatures cared about and what the folks who were upset about being censored on Twitter or on any other social media platform cared about. They cared about the parts of the platform where there’s moderation. Nobody’s complaining about, hey, I can’t get Gmail because of my political views. That’s not happening. You don’t see news stories about it. Everyone knew what this case was about, and they litigated it accordingly.

So, to get up to the Supreme Court and say, “Well, look how broad this Florida statute is. You really have to do a much more complicated legitimate sweep of the legislation analysis before we can even think about a preliminary injunction” all seems a bit much.” I’m glad they said free speech-reinforcing things in their balance of the decision, but I do wonder what’s gonna happen when it goes back.

Nico Perrino: And Bob, hopefully, clarified the Texas law, which essentially prohibits social media companies from engaging in viewpoint discrimination, and you can get some silly outcomes from that, right? If you ban speech supportive of Al Qaeda, you also have to ban speech that would be in opposition to Al Qaeda.

Ronnie London: Well, actually, you can’t do either one of those things. Let’s be clear. You can’t discriminate based on viewpoint, which means you can’t pick a topic and say, “This topic is off limits.” You have to allow things. For example, we know that being hateful or being scandalous or being immoral are all viewpoints that are protected by the First Amendment. We knew that from Tam and Brunetti from a few terms back. So, you can’t just wholesale say, “This type is speech is off” and claim to be viewpoint neutral.

Nico Perrino: Although they tried, right, by saying, “We could bunch it into categories, and we would ban speech by categories.”

Bob McNamara: The Texas Solicitor General’s kinda saving construction of the Texas law was – whoa, whoa, whoa, we’re not saying that you have to host pro-Al Qaeda speech. You just have to ban the category. You have to say that there will be no speech about Al Qaeda, and I have no idea why he thought that was better. But that was, in fact, his defense of the law.

Ronnie London: Well, that’s not viewpoint discriminatory at all then. Problem solved.

Bob McNamara: That was one of the answers that you’re forced into at oral argument when you’re trying to defend bad legislation.

Nico Perrino: In Florida, you have a slightly different piece of legislation. As you say, it’s a little bit broader in that it applies to internet platforms. But it’s more narrowly focus in that it also only applies to how these internet platforms treat news publications, political candidates, for example.

Bob McNamara: Exactly, exactly. It’s both more broadly focused and more narrowly focused.

Bob McNamara: With content-based preferences thrown in to boot.

Bob McNamara: Exactly.

Nico Perrino: So, a couple of lines from the majority opinion. On the spectrum of dangers to free expression, there are few greater than allowing the government to change the speech of private actors in order to achieve its own conception of speech nirvana, and this speaks to the animus behind the Texas and the Florida laws insofar as they didn’t like how these platforms were moderating content. And, therefore, they tried to change the balance of what users could see on the platform.

Bob Corn-Revere: It also speaks to how the 5th Circuit erred in trying to paint as censorship in the same sense as state censorship, decisions by social media platforms. What the court was saying is that this is really a problem that the First Amendment speaks to government action and not to private action. Correcting that load-bearing premise of the 5th Circuit decision, really, I think, goes a long way.

Bob, that’s the one point that I disagree with you on. I think this does a lot for future cases in terms of laying out the ground rules, setting the baseline constitutional principles that are going to apply so that, as I mentioned before, even the 5th Circuit can get it.

Bob McNamara: Oh, no, it’s nice to see those basic principles reaffirmed, and I am glad to have a left-right coalition firmly saying that the government can’t regulate these marketplace of ideas in order to make it more fair and recognizing that that is the most dangerous justification for speech because I think all of us realize the marketplace for ideas is unfair because if it were fair our ideas would’ve won by now.

So, obviously, it’s biased against us and kinda recognizing the dangerousness of that idea, which has had a lot of currency on the left and a lot of currency on the right; and to have it rejected in that kind of an ideologic coalition, I think, is gratifying, and it’s great to see.

Nico Perrino: Well, but if you look at the concurrence from – what was it – Alito or Thomas, they say that all the First Amendment analysis that’s provided in Kagan’s majority opinion is dicta. So, what can we take from it?

Bob Corn-Revere: Well, in a sense it is dicta in that it’s not a binding ruling except for the fact that you have a majority of the court saying this is what the First Amendment requires. So, while the court, I suppose, when this case eventually comes back, as it inevitably will, could say, “Sorry, we didn’t mean it.” That’s not going to happen. You now have a majority of the court, a solid majority of the court, and as Bob says, a bipartisan or multi-partisan coalition of justices making these points. So, I think that is going to set the baseline going forward even if it isn’t a precedent as in, say, striking down a particular role.

Ronnie London: Here’s a minority view. I don’t think it is dicta. I think it is necessary to the outcome of the case because in order to say this was a facial challenge and you did not conduct the analysis appropriately, you have to discard some of the other challenges. For example, I have always worried throughout this case that somebody would wise up and go, you know, this stuff is preempted by Section 230. Why are we dicking around with reaching the constitutional question? Now, there’s a footnote in the decision that explains…

Bob Corn-Revere: Is “dicking around” a technical term?

Ronnie London: Well, that’s the technical term.

Nico Perrino: We’ve got a lay audience on this podcast.

Bob McNamara: There’s a Latin phrase for that.

Bob Corn-Revere: That’s right. That’s right.

Ronnie London: In any event, there was a footnote to that explaining why that was not advanced below. The court below in the 11th Circuit didn’t pick it up. But that was always a potential outcome if you really wanted to dodge, not just dodge a little like they did here. But the other issue in this case is a compelled speech issue, and compelled speech doesn’t use the same analysis as a facial challenge. If you look back, for example, at 303 Creative and the cases that it cites, what becomes clear is compelled speech is unconstitutional pretty much full stop.

If you go back through the court’s compelled speech cases, you don’t see them applying strict scrutiny. You see them say compelling speech is unconstitutional. Now, in order to have the facial challenge and the failure to conduct it properly be the grounds on which this decision is rendered and sending it back, you have to ignore the compelled speech aspect of it.

In order to do that, you have to have this explanation of what rules would apply and should’ve applied if you had conducted the analysis properly. I know I’m going out on a limb a little bit here by calling it necessary to the decision, but I don’t think it’s so obviously dicta that they could simply walk away from it when the case comes back up.

Nico Perrino: BCR?

Bob Corn-Revere: I think it’s dicta plus. I think it is the court expressing what it believes the law to be. And as I said before, a majority of the court. You can argue over whether or not it was absolutely necessary to the decision. Ultimately, the court’s analysis of what is required for a facial challenge was sufficient to make a decision and send it back to say that the lower courts hadn’t performed that necessary analysis.

The court was clear about this saying, “We need to lay out the First Amendment principles so that the lower courts don’t screw it up the next time” and called out the 5th Circuit three different times in the opinion to drive that point home. I would say it’s more than dicta maybe less than a ruled decision. But, nonetheless, I think it’s going to guide lower courts going forward.

Nico Perrino: Well, the majority says that the 5th Circuit decision rested on a serious misunderstanding of First Amendment precedent and principle, but I’m not sure that Alito and Thomas are as convinced because they give credence to the common carrier argument that they say the majority decision just didn’t grapple with, but they should have.

Bob Corn-Revere: They do. They’re a minority of justices that take a different view. And this is something else that, I think, underscores a lot the problem with court viewers. And that is, here you have a 9-0 decision, no dissents. And, yet, it’s in effect a 5-1/2 to 3-1/2 decision setting out what rules should apply to these cases.

It also belies the usual political reporting that you’ll get about this court saying it’s this conservative supermajority of six justices. Well, that’s just not the case in the First Amendment context. You see justices joining forces across ideological lines quite a bit based on the First Amendment principles that we all hope that the court will uphold.

Nico Perrino: Well, do you guys think the common carrier argument carries any water?

Bob McNamara: So, I think it’s very difficult to make the common carrier argument for social media companies because part of the sort of inherent in being a common carrier is the notion of some kind of quasi-monopoly. You’re a must-carry because you have this route. You have this power line, and you’re some type of technical monopoly. That’s the basis for common carrier.

Bob Corn-Revere: And, usually, a government-granted monopoly. And for justices that rely so heavily on history and tradition, like Justice Thomas and Justice Alito, to then claim that social media companies are common carriers is nonsense.

Nico Perrino: So, common carriers, what you’re saying there, Bob, is that they’re like the phone companies. To an extent, they are private water utilities or electrical companies.

Bob McNamara: Or railroad is the classic example. You build a railroad line. No one’s gonna build a railroad line next to yours. So, you have essentially a monopoly over the two cities that you’ve built your railroad line between, and that comes with certain regulatory obligations not to deny people service on your railroad line.

Ronnie London: Well, the other distinguishing feature of a common carrier is the offering of non-discriminatory service. Here, you have the mirror image of that. Everyone’s up in arms because the disservice is being delivered on a discriminatory basis based on which viewpoints or what types of substance the social media platforms want to carry. It’s a little bit ironic to say, “Okay, wait. That’s a problem. Let’s make them common carriers.”

Bob Corn-Revere: But not only that, if you go back historically to the origin of the common carrier doctrine, whether you’re talking about railroads or stagecoaches or waterways, those things were adopted in the communication’s world only by analogy. When the Radio Act of ’27 and the Communications Act of 1934 were adopted, they basically were saying, “Why don’t we just borrow that concept of common carriage from the transportation world, and we’ll apply it. But it will apply only to specific phone service, point-to-point communication between people where the company had nothing to do with that communication.

It didn’t apply to radio or, ultimately, to television or other communications media. Here you have a new medium that has never been subject to these kinds of rules and has never played by this non-discriminatory access that Ronnie was talking about. So, to simply say, “Poof, you’re a common carrier” because we want to impose obligations on you is contrary to history and is contrary to the traditions of the First Amendment.

Bob McNamara: I also think it belies a lack of imagination about how the world works. People invent things. The world is dynamic. Right now, you could say Twitter has a monopoly on Twitter, but there’s no obstacle. And as we’ve seen, people do start new social media companies.

Bob Corn-Revere: Or they leave social media companies when they become dissatisfied with the new owner.

Ronnie London: Exactly, the marketplace seems to be operating.

Nico Perrino: Well, the argument, I think, on the other side would be we saw what happened with Donald Trump after January 6th. All these social media companies dumped him. But then the counterargument to that, of course, is you have platforms like Parlor and Truth Social that started up.

Ronnie London: And he was never heard from again.

Nico Perrino: Justice Barrett also has a somewhat interesting concurrence in which she speculates that maybe these principles that underlie the First Amendment that the majority opinion says don’t change with the advent of new technologies. Maybe they will change with artificial intelligence. Did you all see that?

Bob Corn-Revere: Well, she did try and draw some nuanced distinctions between direct editorial choices made on the part of platforms or where they use algorithms to simply implement the users’ changes or use artificial intelligence to make those kinds of things. But she simply raised that as a question, which I think is appropriate in a matter where the court is not deciding the ultimate questions but saying that this is a complex and nuanced area, and we need to take some care in analyzing the facts before we make a pronouncement one way or the other.

I’m not wild about the idea that she left it open that even machine-based editorial choices, particularly machine-based editorial choices, might change the balance because, ultimately, it is the platform that is programming those algorithms to make those choices.

Ronnie London: At least until the singularity.

Bob Corn-Revere: That’s right.

Nico Perrino: Well, to level-set I think what Texas and Florida were seeking to address with their laws were human-centric moderation decisions to de-platform…

Bob Corn-Revere: I don’t think they’re distinguished.

Nico Perrino: No, I don’t think they did distinguish. But I think the animus for the laws came from the deplatforming of former President Trump –

Bob Corn-Revere: Who knows what goes on inside the minds of legislators?

Nico Perrino: – from the New York Post story and the Hunter Biden laptop issue. But most platforms’ moderation decisions happen algorithmically.

Bob Corn-Revere: They have to.

Nico Perrino: They have to. You have millions of pieces of content that need to be sorted through and can’t be sorted through by simply humans. And then she has this question, “But what if a platform’s algorithm just presents automatically to each user whatever the algorithm thinks the user will like.

Ronnie London: Well, that’s still a choice

Nico Perrino: It’s still a choice but it’s also how most algorithms work because they see what you engage with. They see what you look at, and then they tweak the feed to present you with the content that you think will be more engaging.

Bob Corn-Revere: That’s one of things that they do. What the legislatures were really concerned about is the fact that these platforms have terms of service where they define what kinds of communities they want to foster. They don’t like certain kinds of speech. They don’t like hate speech – and, again, I’m generalizing – or misinformation, various kinds of things that are supposed to be forbidden on those platforms.

Now, a lot of times these rules are enforced more in the breach than in the observance. It’s hard when you’ve got billions of posts coming in all of the time where in the case of YouTube 500 hours of new content every minute.

Ronnie London: 500 million, I hope.

Bob Corn-Revere: Huh?

Ronnie London: 500 million.

Bob Corn-Revere: No, no, 500 hours per minute.

Ronnie London: Per minute.

Bob Corn-Revere: Per minute.

Nico Perrino: 500 million.

Ronnie London: Is that the daily figure? I thought I saw 500 million.

Nico Perrino: We’re just talking about big numbers at this point. There’s a lot of videos coming into YouTube.

Bob Corn-Revere: Multiply 500 times 60 and then by 24.

Ronnie London: Well, obviously, I can’t do that math.

Bob Corn-Revere: Then get an algorithm for that. But that’s why you have to have these decisions made on that basis. Platforms can’t live without out it. So, whether or not you’re having human moderation or algorithmically based moderation, that is a necessary function of the internet, and it is an editorial choice.

Nico Perrino: What do you say then, Bob McNamara? That’s gonna constantly confused. I know Bob Corn-Revere told me to call him BCR. But I’ve just never called you that.

Bob McNamara: Should we do good Bob and evil Bob?

Nico Perrino: We’ll let the listener decide which one is good Bob and which one is evil Bob. But I host a free speech podcast. I’ve been doing it for seven years. It’s hard to believe now. The most common response I get from our listeners is about the censorship that they most often experience in their day-to-day life, the censorship they experience on social media. Now you can call that censorship.

I know we take issue with calling it censorship because it’s a private actor determining who can and cannot be on their platform. But that’s how they experience this world where they put out an idea, and someone is trying to stop that idea from circulating or stop them from sharing that idea. What do we say to those folks who are concerned that this is the most significant censorship issue of our time?

Bob McNamara: In a way, they’re not wrong. And it’s frustrating when there is a large venue for communication and you can’t make your voice heard in it. I have personally been censored by the New York Times repeatedly. I’ve submitted op-eds, and they have no published them. That’s terrible because they were great op-eds, and they should’ve run them.

Bob Corn-Revere: And there’s you’ve defined the problem. People simply don’t have a right to be on a private purveyor of information, whether it’s the New York Times or on a social media platform. Really, it’s a matter of coming down to which is the worst evil. And the majority opinion in that choice basically said that, that as bad as some of these marketplace-based decisions might be in your estimation, putting the government in charge of it is worse.

Bob McNamara: Because the government will never get out of the business of being in charge of how fair the marketplace of ideas is.

Bob Corn-Revere: Exactly.

Bob McNamara: As we’ve seen, companies do get out of that business because the people don’t like the decisions they’re making. If your voice is really strong, if your opinions are right, eventually, there are places you can make your opinions heard, and that’s what changes the culture and what changes the overall stream of [inaudible – crosstalk] [00:27:14].

Bob Corn-Revere: Or they may change their approach to it entirely, as we’ve seen with Twitter and X. You might like it or hate it. But the fact is that that was a response made based on the way in which the company had been operating previously.

Ronnie London: I’ve always said, “People get the government that they deserve. People get the social media they deserve.” They get the social media they’re willing to tolerate. They get the social media that presents the compromises that they’re willing to accept. You don’t have to be on social media. Trust me. I know. Whether you are willing to remain on a platform or any platform if it’s not serving your needs that’s entirely up to you. And like I said, the market ultimately will speak to user preferences if the users are willing to express them.

Nico Perrino: So, what’s gonna happen from here? The case is gonna down to their respective circuits. I don’t see how you read the majority opinion and have really any movement to do anything other than to say these laws are unconstitutional, right?

Bob Corn-Revere: What the courts have been instructed to do is to more fulsomely define what these statutes do. What applications present First Amendment problems and which ones don’t and whether or not the unconstitutional applications outweigh the potential constitutional applications. That’s the methodology for a facial challenge in First Amendment context.

Nico Perrino: So, how would that work in practice? They would look, and they’d say, “Yes, this law does apply to Etsy. Yes, this law does apply to Venmo. Yes, this law does apply to Uber, but it also applies to Meta’s moderation decisions, TikTok’s moderation decisions and X’s moderation decisions.” Then they put it – what – on a scale and figure out where…?

Ronnie London: Well, unconstitutional applications have to be substantially more than the legitimate sweep.

Nico Perrino: So, if someone’s been looking at this opinion, that would be the social media networks, the Meta’s, the TikTok’s, the X’s, even though the law and constitutional acts apply to them.

Ronnie London: Basically, it’s the one that are doing the kind of moderation that the court describes as being protected by the First Amendment. All those functions would be in your numerator arguably and then everything else that the statutes ultimately sweep in. And it’s different for Texas and Florida, as Bob said – would be your denominator, and then, yes, you’d do some kind of silly little math.

Nico Perrino: We’re doing a lot of math here, yeah.

Ronnie London: I know, right? I went to law school to avoid that. It’s interesting because one of the things I was thinking about last night, as I lie awake in bed thinking about this, as I sometimes do, is I was worried about what becomes of the preliminary injunctions? And Bob and I talked a little bit about this a little bit this morning. If you look at the Supreme Court’s decision, it’s interesting what it does. It doesn’t say the decisions below are vacated for proceedings not inconsistent with this decision. It says the 11th Circuit and the 5th Circuit decisions are vacated.

What’s the net effect of that? Well, that means you have a decision in the district court in Texas and a decision in the district court in Florida where preliminary injunctions have entered. I would argue that they, therefore, still remain in place pending next steps in litigation. One way to go would be for the courts to go ahead and process these as facial challenges under the instructions and the framework set out by the court. There’s nothing stopping the complaints from being amended or the challenges that are teased out of the complaints being modified.

You could decide if you were a litigant to change your challenge from a facial challenge to an as applied to social media, as described in this decision challenge. You don’t have to do the facial analysis the court describes. Instead, you just then proceed to straight strict scrutiny.

Nico Perrino: This is where we’re gonna go out of order. If we were going in reverse chronological order, we would go next to Murthy v. Missouri. But I think it’s probably better for the discussion of jawboning to start with NRA v. Vullo, which is the case involving the New York State regulator that put pressure on insurance companies to stop doing business with the National Rifle Association in the wake of the Parkland shooting.

Essentially, Maria Vullo, a state regulator there, had a meeting with some of these insurance companies. I think Lloyd’s of London was one of them where they essentially said, “If you stop doing business with the NRA giving them these insurance policies, then we won’t investigate you for these other things.” This creates a burden on the NRA’s expressive activity because the animus here was that New York State didn’t like the NRA. It was pushing for gun control in the wake of the Parkland shooting.

I might’ve described that wrong. I’ll let you all correct me. But the long and the short of it in the 9-0 decision from the Supreme Court that said you can’t do that. You can’t coerce private entities to stop doing business with other private entities just because you don’t like the speech of one of those private entities. Is that right? Is that your understanding of it, Ronny?

Ronnie London: Yeah. Well, they said you can’t do that if that is, in fact, what you did. Don’t forget the posture of this case. This case is up on a 12(b)(6) motion on a preliminary injunction. And that means that in construing the complaint you have to accept all the facts as true and all the inferences reasonably drawn from them in favor of the plaintiff. And the NRA alleged all of the things that you just described, including that Vullo is a regulator who has direct enforcement regulatory authority over the financial services and insurance companies that she oversees and that she had these communications with them.

And one thing that I didn’t really appreciate until the Supreme Court decision, she talked about among other things reputational risks. And it wasn’t until the Supreme Court in a footnote in the case explained that that’s a regulatory term of art that can be determinative in potentially bringing enforcement actions or finding problematic something that a bank or financial service did.

So, when you say, “Pay attention to your reputational harm,” it’s not just, hey, people out there might think bad things about you if you continue to do business with the NRA. It’s actually a hook for regulatory action. And you add up all the various ways in which she leaned on the insurance companies and on the financial services companies. And, as the NRA described it, it’s pretty easy to see a coercive pattern there that as you say you can’t do this.

Bob Corn-Revere: Well, let’s put this in, I think, more direct terms. You have a state that regulates banks and insurance companies, and they use that financial regulation in ways to tilt the political debate over guns. It doesn’t like the NRA. It knows the NRA has affinity insurance programs. So, it takes measures to enforce the law in ways that put pressure on the NRA.

They go to the banks. They go to the insurance companies. They say, “If you don’t sever your ties with the NRA, then bad regulatory things are likely to happen to you. Or if you do sever your ties, maybe we’ll look the other way on a few other things.” So, you have the state using its regulatory power, threatening to use its regulatory power, in ways that are going to affect political discussion. That’s what the court was talking about.

By the way, backing up and showing the ties to what we have here, as Ronny was pointed out, this was at a preliminary stage of the case. It’s not after a trial, after the case has been determined. It’s just looking at the complaint that the NRA filed and whether or not that stated a claim, and the court said that it did based on these principles.

And, similarly, what we have here in the NetChoice cases are you have principles being articulated by the court that are going to be applied in the lower courts going forward. So, the same is true in both NRA and in this case. You have the Supreme Court setting the baseline for what the constitutional rule is, and it should lead to the right result when lower courts get done with it.

Nico Perrino: But going back to what Ronnie was saying earlier, if the state regulator has an interest in ensuring that there is no reputational harm by these insurance companies from doing business with certain other companies and the NRA is a very controversial organization, particularly in the wake of school shootings as we know, why don’t they have an interest in saying you should watch out for your reputation in doing business with the NRA. Bob McNamara?

Bob McNamara: Well, I think that’s exactly what they’re not allowed to do to the extent that the regulation encompasses doing business with ideologically unsavory people. That’s just an unconstitutional regulation.

Nico Perrino: Then what does the reputational harm regulatory authority even mean there if you can’t determine the reputation of the folks that you’re regulating?

Bob McNamara: So, the government’s justly concerned about the reputations of insurance companies and banks because they’re entities that we rely on to pay us money when we need money. When we go to make a withdrawal from the bank, when our house burns down, we go to insurance company. They’re supposed to have a reservoir of money. And if they act in a way that starts to make the market think, gosh, you guys aren’t going to have a reservoir of money, I better pull all my money out of the bank.

That’s the asserted government interest there. It has nothing to do with, you know, the people you’re doing business with say means things about me, the governor of the state. And that’s kinda what New York was leveraging these regulations to do. People in New York really don’t like the NRA. They’re advocating for really bad stuff, and that’s going to cause harm to your reputation.

And if I find you have a bad reputation, which is supposed to be financial, but here I’m just making it ideological, I can actually shut down your ability to do business in New York State. That’s what Bob’s talking about in terms of leveraging the state power to cut off your political enemies from essential private market services.

Nico Perrino: What about this idea that the insurance program or the insurance policy that, I believe, Lloyd’s of London offered, maybe one of the other insurers offered, is illegal in New York State? Often referred to pejoratively as a murder policy. So, you would be insured against a misuse of the gun, whether for murder or something else, I guess.

Bob McNamara: So, I don’t wanna pretend to be an insurance lawyer because I’ve successfully avoided that my entire life. But, ultimately, that doesn’t matter because that was just the state’s hook. If you speed on your way to work and the police pull you over and say, “Look, you were going 90 in a 45; that’s super dangerous, and while I have you here, let’s talk about this podcast of yours.” It doesn’t matter that you were driving too fast. The pressure about your podcast is what makes it unconstitutional.

Bob Corn-Revere: That’s right. And the court actually spoke to that point saying that it may be that these affinity insurance polices are illegal. That’s not the issue here. The issue here is whether or not the state is illegally leveraging its regulatory power on third parties to affect the NRA speech.

Nico Perrino: So, in Sotomayor’s opinion here, she writes, “A government official can share her views freely and criticize particular beliefs, and she can do so forcefully in the hopes of persuading others to follow her lead. In doing so, she can rely on the merits and force of her ideas, the strength of her convictions, and her ability to inspire others. What she cannot do, however, is use the power of the state to punish or suppress disfavored expression.” But the line there isn’t always clear, is it?

Bob Corn-Revere: No, it’s not. And that’s always been the problem. This is a rule that goes back to 1963 in a case called Bantam Books v. Sullivan where the Supreme Court established this doctrine that you can’t use informal coercion to restrict speech in ways that you’re barred from doing directly by law. So, the difficulty there is what informal measures fall into that category? How much does the government have to do to cross that line between persuasion and coercion?

Up until now, the court has never really defined that. The innovation in NRA v. Vullo or at least the advancement of the law in NRA v. Vullo – and Ronny may disagree with me on this – is that the court at least articulated certain criteria that lower courts should use in analyzing when that line is crossed. It’s not a precise line. It is a very fact-bound kind of inquiry. You have to look at a range of factors. But, nonetheless, the court not only reaffirmed this principle but also tried to create some analytic tools for determining when speech goes too far by the government.

Ronnie London: It basically agreed that the things that the lower courts had been teasing out of Bantam Books for decades are, in fact, appropriate criteria to look at. And I wouldn’t go so far as to say not novel, but you’re not getting a patent for it.

Nico Perrino: So, then it sent it down to the lower court and said you gotta analyze it through this Bantam Books’ framework that we are more clearly articulating than we did in Bantam Books.

Ronnie London: Well, not only that, they basically reminded the 2nd Circuit how you read a complaint at the early stages of a case when it’s faced with a motion to dismiss because one of the things that we talked about in our amicus brief – I think it was in a footnote – was one of the things 2nd Circuit did was it basically disaggregated all of these individual death by a thousand cuts. So, here’s this letter where they say, “Think about your reputational risk.” And over here’s a conversation where they say, “Well, if you get rid of these affinity programs, maybe we’ll ignore a few of these other offenses.”

Bob Corn-Revere: And then a press release for the governor.

Ronnie London: Yeah, and a press release. And you look at them all individually, and all individually, any one of them is fine. So, therefore, this must be perfectly okay. And that never made sense to me. And the court makes very clear that you have to draw all the inferences and the potential connections between those in favor of the NRA at this stage in litigation. And that’s the appropriate test.

Nico Perrino: So, you can’t just look at the discrete interactions between the state regulator and the insurer. You have to look at them as a whole.

Ronnie London: And have it be understood.

Bob Corn-Revere: That’s right.

Nico Perrino: As a regulated entity.

Bob Corn-Revere: What’s interesting is, the 2nd Circuit when it upheld dismissing the complaint articulated these very factors that the court has endorsed. It just misapplied them. So, the court basically said, “Yes, Bantam Books means what we said it meant in 1963. And by the way, now apply these factors in a way that make sense under the constitution.

Nico Perrino: So, the court here, Bob McNamara, said in more or less no uncertain terms. It says it a little bit in the majority opinion, but I think it says it more directly in Gorsuch’s concurrence that this is well-settled law. What does that mean for qualified immunity?

Bob McNamara: So, that’s the next stage in Vullo. One lesson of this Supreme Court term is if you care about the First Amendment in this country, you have to care about the state of constitutional remedies in this country because the 2nd Circuit said two things in this case. They said, “Look, this isn’t unconstitutional coercion. All of this is cool, and even it were, there would be qualified immunity.”

So, qualified immunity is this rule the Supreme Court has invented, largely out of whole cloth, that says a government official can’t be held liable for violating the constitution unless they violated a clearly established right, which means a right that some court has specifically held cannot be violated in exactly these circumstances. It is, depending on how you apply it, a tremendously difficult test because the world is complicated, and the same thing never happens in the same way twice.

So, what will happen on remand is the defendants in this case will say, “Look, we should be entitled to qualified immunity because this wasn’t clearly established. And we know it wasn’t clearly established because you guys, 2nd Circuit, didn’t know we weren’t allowed to do this.” You thought it was fine.

And that’s going to be a tremendous obstacle in actually getting this case beyond the complaint stage because there is this huge barrier set up to any kind of constitutional liability, which as we’ll talk about even more when we talk about Murthy. It makes it very difficult to create any kind of disincentive for this sort of leaning on third parties to silence your political opponents.

Bob Corn-Revere: What’s interesting is that the Supreme Court did not take up the qualified immunity question when asked to do so after the 2nd Circuit decision. But then in issuing the decision that it did saying we break no new ground. This is the law, has been the law since 1963.

Nico Perrino: The words “well settled” are used.

Bob McNamara: They’re on purpose.

Ronnie London: I think they’re sending a pretty clear signal. In fact, the government tried to argue that by not taking the qualified immunity question the Supreme Court had mooted its jurisdiction over the case, and they drop a very pointed footnote at the beginning of the decision saying, “No, we didn’t.” By the way, one of the reasons the 2nd Circuit might wanna reconsider that qualified immunity determination when this goes back. So, there are a few signals within the case –

Nico Perrino: Exactly.

Ronnie London: – that while, ordinarily, you’re absolutely right, Bob, that qualified immunity can be quite a high bar. Here, I think, at least the court has given the plaintiffs a little bit to push back on that with.

Bob McNamara: The court has sent strong signals. I think the problem is those signals are coming back with you to the same court that decided this case before. Sometimes, you will find appellate courts chastened by the Supreme Court’s intervention. You’ll all remember Judge Reinhardt on the 9th Circuit who, I think, was apocryphally was quoted as saying, “The Supreme Court can’t catch them all.” Sometimes, appellate courts just try to see what they can get away with.

Nico Perrino: Is that a Pokémon reference?

Bob Corn-Revere: I think that’s absolutely true. But what you’re saying is, the Supreme Court ramping up its signals to the lower courts saying, “We really do mean this.”

Ronnie London: Don’t forget, the only reason this case was able to get to the Supreme Court was because the district court denied qualified immunity at the pleading stage. You can’t get an appeal on a grant of qualified immunity. So, it is going back to a district court that said we have to develop the facts here before we can decide qualified immunity to begin with.

Bob McNamara: Well, it’s up on an interlocutory appeal. So, I think the 2nd Circuit has jurisdiction to say that was wrong. There is qualified immunity. I think it oughtn’t say that. I think the Supreme Court has been pretty clear that we think this is a boring easy case, and we don’t know what you’re doing. But that’s the next battleground.

Nico Perrino: But you have a concurrence from Justice Ketanji Brown Jackson who writes the effect of Vullo’s alleged coercion of regulated entities on the NRA speech is significantly more attenuated here than in Bantam Books or most decisions applying it. It is, for instance, far from obvious that Vullo’s conduct toward regulated entities established “a system of prior administrative restraints” against the NRA’s expression.

Bob Corn-Revere: And I think having listened to the oral argument in this case – I think to put it as gently as possible, Justice Jackson was not fully informed as to what Bantam Books stands for. I think she was taking it in a very literal sense to mean if you put pressure on bookstores because it involved books, that necessarily involves a protected expression and a First Amendment issue.

But because here the pressure was on third parties that were insurance companies then that doesn’t necessarily raise a First Amendment issue. But the pressure was imposed on insurance companies to censor the political speech of the NRA. So, for her to say that the direct link is more tenuous is, I think, really to misunderstand the issue.

Ronnie London: And you don’t have to set up a series of prior restraints in order to have a Bantam Books problem.

Bob Corn-Revere: That’s right. That’s right. It can be any restriction of speech.

Nico Perrino: Let’s move now to the other jawboning case, Murthy v. Missouri. This is probably the more culture war-y issue or case of the term.

Bob Corn-Revere: Well, NRA was pretty culture war-y.

Nico Perrino: A little bit, but this case involved COVID and, I think, to a certain extent some election disinformation.

Bob Corn-Revere: Well, all of these cases we’ve been talking about involve litigating the culture war, whether it is the moderation policies of social media platforms, NetChoice cases, or Murthy v. Missouri where you’re going after the Biden White House for putting informal pressure on social media platforms or NRA, they are all attempts to political manipulate the marketplace of ideas. And what you have is the Supreme Court in most cases – Murthy is an exception – sorting out what First Amendment principles should apply.

Nico Perrino: So, this is a 6-3 decision. And as you were referencing, BCR, this involved Federal government officials putting pressure on social media companies predominantly during the COVID era to censor what they saw as COVID mis- or disinformation related to vaccines and other restrictions that were put in place throughout society at that time. Ultimately, what the court rules is that the plaintiffs in this case did not have standing to bring the challenge.

Bob Corn-Revere: Right.

Nico Perrino: What does that mean? So, they essentially just sidestepped the issue completely.

Bob Corn-Revere: Well, no. It means they weren’t able to demonstrate as a threshold matter whether or not the actions that they alleged were traced to a constitutional injury that they experienced and that they couldn’t point to ways in which a court action would redress their harms. So, that is a threshold question for whether courts have jurisdiction to hear the case in the first place, and the Supreme Court held that in this case that hadn’t been demonstrated.

Nico Perrino: The plaintiffs – hold on – social media users, states?

Bob Corn-Revere: Well, it reached that conclusion for all of them. It said that particularly for the states that were plaintiffs below, but it also said that for individuals, even though the majority acknowledged that at least one of the individuals had a better claim to standing than the others.

Nico Perrino: This is Jill Hines.

Bob Corn-Revere: Right. But it just wasn’t enough. This is an example where I think culture warriors really shot themselves in the foot. This really was, I think, a pure culture war case going after the Biden administration and hilariously having state attorneys general from red states being among the plaintiffs because they are some of the worst offenders when it comes to these kinds of jawboning activities.

Bob McNamara: Or legislative, NetChoice.

Bob Corn-Revere: Same thing there too. And because of that, they used what we now know as the Twitter files as the basis for bringing the case of these background efforts by the administration, which by the way we think were unconstitutional, and we at FIRE think were unconstitutional as well under the Bantam Books’ principle.

But they started with that, brought this case, and had lots of information about general efforts by the administration and, really, a lot of unseemly stuff about the administration trying to work hand-in-glove with social media companies. But they had a very compliant district court judge that basically uncritically accepted every allegation, and it really did read like a culture war centerpiece.

Nico Perrino: I wanna read something from the decision. I want you guys to tell me to the extent you think the court is wrong why it’s wrong here. So, it says here, “The plaintiffs fail by and large to link their past social media restrictions and the defendants’ communications with the platform.” That is you have the users here who the court says do not link the taking down or the moderation of their post to something the federal government coerced the social media companies into doing.

It continues. “In fact, the platforms acting independently had strengthened their preexisting content moderation policies before the government defendants got involved. For instance, Facebook announced an expansion of its COVID-19 misinformation policies in early February 2021 before White House officials started communicating with the platform. And the platforms continued to exercise their independent judgment even after communications with the defendants began.”

“For example, on several occasions, various platforms explained that White House officials had flagged content that did not violate company policy. Moreover, the platforms did not speak only with the defendants about content moderation. They also regularly consulted with outside experts. This evidence indicates that the platforms had independent incentives to moderate content and often exercised their own judgment.”

“To be sure, the record reflects that the government defendants played a role in at least some of the platforms moderation choices. But the 5th Circuit by attributing every platform decision at least in part to the defendants glossed over complexities in the evidence.” So, the court is just not seeing like what we saw in NRA v. Vullo where a very clear indication that it was the government action that resulted in the moderation.

Bob Corn-Revere: Exactly, easy to trace in NRA v. Vullo because you have statements by the director of financial services leading to decisions by Lloyd’s of London. You have a press release from the governor, very easy to see. Here, where you have a million contacts between the administration at various levels and other private actors as well and then decisions in gross made by social media platforms all based on policies that they had independently, then it’s really hard to trace, even though, I think, our position has been consistently that having government that involved in moderation decisions is not a good thing and can violate the First Amendment.

Nico Perrino: What if, though, the platforms invite the government in?

Bob Corn-Revere: Well, they can do that.

Ronnie London: Volitionally? That’s always gonna be the question.

Bob Corn-Revere: Right.

Ronnie London: What you’re gonna have is you’re gonna have an allegation like you have, for example, in Vullo that they were cowed to let them in. Yeah, they said they were letting them in voluntarily. But truth of the matter is they were leaning on them. Look, we’ve seen ads from certain social media companies that are basically asking for regulation. They’re not doing that because they really wanna be regulated. They’re doing it because they fear bad regulation, and they’re trying to welcome regulation that they could live with. So, when you say voluntarily, that’s a bit of a loaded term, and that becomes kind of a question of fact.

Nico Perrino: Yeah, a bit of a shotgun wedding.

Bob McNamara: Well, I think that’s kinda where Vullo goes right is to say you have to look at this in context. In any interaction with the government, particularly an interaction between a large corporation and the federal government, the federal government has enormous power. There’s always gonna be a thumb on the scale in favor of compliance.

The discussions in Murthy, actually, I think, obscure a little bit how hard it actually would be to hold the federal government accountable here because for the most part, the opinions in the case are talking about what happened in the past. Have they really shown that this particular jawboning caused this post to be taken down? But that’s actually not enough to let them sue. What they would have to be able to prove is not only that this happened in the past but it’s likely to happen in the future.

There’s a paragraph in the majority pointing this out. They’re only asking for an injunction for forward-looking relief. So, it’s not enough to prove the government silenced them in the past. They have to show, ah, not only during the COVID era did they do this, but I actually have proof they’re going to do this again to me next week or the week after. And the reason they’re doing that is that the Supreme Court has said, “You cannot sue a federal official for violating your First Amendment rights in the past.”

Bob Corn-Revere: Well, the problem was the way in which this case was brought by a collection of users and by the states because there it’s very hard to prove what was in the mind of the social media companies when they made particular moderation decisions. But if the case had been brought by the platforms themselves saying here are all the contacts in the administration. Here’s what they’ve told us to do. We didn’t want to, but here are the changes we made to our moderation policies. And they’re still in place. Then, based on the principles articulated both in Vullo and in Murthy, you would have standing, and you would have a colorable First Amendment claim.

Bob McNamara: The problem with that is you’re never gonna see that lawsuit. The insurance companies didn’t sue Secretary Vullo because Secretary Vullo can destroy their business in New York.

Bob Corn-Revere: Well, yes, but social media platforms have been pushing back on state and federal laws.

Nico Perrino: Yeah, you could get Elon Musk under Twitter 2.0. All this alleged censorship happened under Twitter 1.0. Now you have Elon Musk. So, could Elon Musk now file a lawsuit for what happened in the past and join it from happening in the future?

Bob McNamara: He cannot because you can’t get damages from a federal official for violating the First Amendment in the past. So, you have to prove that it will happen again, and the government’s response is going to be, “Look, these people don’t even work here anymore.” Who is to say that we’re gonna jawbone you again, and it makes it almost impossible in a lot of practical scenarios to create any kind of government accountability. It’s why I say if you care about free speech, you have to care about the law of remedies because Elon Musk doesn’t have one.

Nico Perrino: Hold on here, Ronnie, I wanna respond to that. On Page 26 of the decision, it says, “A court could prevent these government defendants from interfering with the platform’s independent application of their policies. But without evidence of continued pressure from the defense, it appears that the platforms remain free to enforce or not to enforce those policies, even those tainted by initial governmental coercion.” So, it says it could prevent the government officials from doing it.

Bob Corn-Revere: Right. You’ve just made all of our points.

Ronnie London: Look, I looked at the defendants in this case. You say some of these folks don’t even work here anymore. Well, Biden’s still got a job. Murthy’s still got a job. The FBI is still working. The DOJ is still working. If you had a suit by the platforms and the defense was, well, COVID’s over. We stopped leaning on you. First of all, that’s not responsive to the Hunter Biden laptop and any other election misinformation, which is a recurring issue. But also, it’s a question of voluntary cessation as well.

Nico Perrino: What does that mean?

Ronnie London: Voluntary cessation? I don’t know anymore.

Bob Corn-Revere: Well, just because the government says we’ve stopped doing something –

Ronnie London: Exactly.

Bob Corn-Revere: – doesn’t mean you necessarily moot out the case.

Ronnie London: Right.

Bob Corn-Revere: To the extent that misconduct can recur, then courts can still rule on whether or not it was constitutional.

Ronnie London: And the application of that principle has been hit and miss.

Nico Perrino: So, we have a dissent from Alito joined by Thomas and Gorsuch. I’m gonna read two portions of that dissent. “In Vullo, the alleged conduct was blunt. The federal official’s conduct here was more subtle and sophisticated. The message was delivered piecemeal by various officials over a period of time in the form of aggressive questions, complaints, insistent records requests, demands, and thinly veiled threats of potentially fatal reprisals. But the message was unmistakable, and it was duly received.”

Bob Corn-Revere: And if only we had seen that level of concern about the First Amendment from those justices in the NetChoice cases, I think the world would be a better place.

Nico Perrino: The dissent also says, “What the officials did in this case was more subtle than the hamfisted censorship found to be unconstitutional and Vullo repeating the point, but it was no less coercive. And because of the perpetrators high positions, it was even more dangerous. It was blatantly unconstitutional, and the country may come to regret the court’s failure to say so.”

Bob McNamara: Maybe. Ultimately, I think it’s important to remember that the dispute here is really about the facts. Nothing in this opinion prevents the district court from holding a hearing, having witnesses take the stand, and actually resolving some fact disputes about what happened that on this record, I don’t know, are resolved or not. I think, ultimately, that’s where this case is going to come out. Is there a district court that finds facts and those fact findings are entitled to deference on appeal about exactly what caused what, which I think is what’s missing, which I think if it were present, it would actually flip some of the votes in the majority.

Bob Corn-Revere: And that’s why I’m optimistic about the results of this year’s decisions on First Amendment terms. There was a trilogy of paired cases that addressed all of these various issues. The first is the NetChoice cases that we talked about. The second, there was Vullo and Murthy that were argued the same day, although they were decided at different times; and then there were the cases involving public officials’ use of social media platforms, also paired cases, where there was essentially a single decision that resolved them.

In all of those three scenarios, the court laid down the constitutional rules that are supposed to apply. Now, in Murthy, it didn’t go ahead and apply it to these facts. But the constitutional guidelines for how lower courts are supposed to address these issues have been laid out, and they’ve been laid out, I think, in very speech protective terms. So, there’s still a lot of work to be done on factual records and so on. But, overall, the court, I think, got it right.

Nico Perrino: Can I just ask a question that’s a little bit forward looking. So, in NRA v. Vullo, as we were discussing before, the regulator has an interest in regulating reputational harm. They just can’t do it for ideological reasons. They can do it for reasons of financial stability and whatnot. In some of these other jawboning cases, you see state officials utilizing an otherwise constitutional exercise of their authority but for ideological reasons. So, for example, you have state attorneys general who, I believe, filed suit or a complaint against Target.

Bob Corn-Revere: They wrote a letter.

Ronnie London: They sent him a mean letter.

Nico Perrino: An angry lawyer letter – we’re all familiar with those – to Target alleging that they violated their fiduciary and shareholder responsibilities by selling merchandise that was LGBTQ themed.

Bob Corn-Revere: Not just that. But they alleged that sale of the merchandise might violate state obscenity laws, which would embarrass a first-year law student to make that kind of claim, and it even is more ironic than that. Signatories to that letter were the same attorneys general that brought the Murthy case claiming that jawboning is unconstitutional.

And, yet, here they were, the same day that decision came down, signing onto a letter threatening Target, which is why it’s really important for the Supreme Court to sort this out because the rule that it articulates will apply to those attorneys general every bit as much as it would to the Biden White House or to the officials of New York.

Nico Perrino: I also saw a story coming out of Florida recently where you had an individual place an ad that compared former President Trump to Fidel Castro, and you had a federal legislator from the state of Florida call in or write to Lamar Advertising that owns the advertising space asking them to take it down. It just seems like to the extent that conservatives or Republicans are concerned with jawboning that they’re not actually practicing what they preach.

Ronnie London: Well, that’s an interesting example because if all he did as a single legislator in the Federal Congress was to write them and say, “That crosses the line. I find that tasteless and inappropriate. You really ought to take it down.” And that’s all he did?

Nico Perrino: It’s she, I believe.

Ronnie London: Was it she? Well, that’s the Twitter case in the 9th Circuit, the Bantam Books case, where the court looked and said – or was it Amazon? Was it Amazon or Twitter? I think it was Amazon. You’ve got one legislator writing to Amazon saying, “You should take this COVID debunking book out of your marketplace because it’s giving people all kinds of wrong ideas.” And the court said, “Well, this doesn’t satisfy Bantam Books because this one legislator doesn’t have any power over this company.”

Bob Corn-Revere: And that’s why you have to look at the range of factors.

Ronnie London: Range of factors, right. So, if that’s all they did, it’s a good counterpoint example.

Nico Perrino: Well, I don’t know that do know that’s all they did because all we know is this legislator celebrated the decision and said that it came as a result of a conversation they had with Lamar Advertising.

Bob Corn-Revere: If you’re persuasive, you’re persuasive.

Ronnie London: Right.

Bob Corn-Revere: But if you’re coercing, that’s another story.

Ronnie London: Right.

Nico Perrino: And the idea here is that as a federal legislator just representing, perhaps, the district, there’s only so much that they can do as a government official to affect Lamar.

Bob Corn-Revere: But Bantam Book isn’t limited to its direct authority.

Ronnie London: It’s just one factor.

Bob Corn-Revere: It’s possible for a position of power to make noncompliance hurt, even they are not directly at risk of having the law enforced against them. The coercion can take many forms, including informal ones.

Bob McNamara: I’m glad Vullo does look at things in context because government officials wield enormous power, and limiting this doctrine to the most ham-handed of threats – the most quintessential threat in the entire American lexicon is this is a nice restaurant. It would be a shame if anything happened to it. Because those words come from someone wielding enormous power, those words are different from if I say them over dessert. And I think courts have to recognize that when government officials that wield enormous power say things like that because I think you’re right, Nico. People don’t practice what they preach.

People are perfectly happy to spout free speech principles and then silence speech they don’t like. And, honestly, I couldn’t promise you that I wouldn’t do that. I believe in free speech. I’m a principled person. And if you gave me infinite power, I would probably punish people who said mean things about my mother. She’s a nice lady. That’s why we have constitutional principles because you have to have background rules that restrain the natural human impulse to silence people who are saying things that outrage you.

Bob McNamara: Lord Acton meets Spiderman.

Nico Perrino: I’m looking through my notes right now. I think I recall something either from Murthy or Vullo or maybe it was even Bantam Books, which said that even if the government official doesn’t have the authority to make their lives miserable or to harm them, if their authority is interpreted by the entity to potentially hurt or harm them, then that can still be an unconstitutional exercise of jawboning.

Bob Corn-Revere: To the extent that there is a credible threat of some adverse action that is perceived as a threat, yes.

Nico Perrino: I wanna turn now to Gonzalez v. Trevino. This is Bob McNamara’s company’s case.

Bob McNamara: It’s an IJ case.

Nico Perrino: It’s an Institute for Justice case. The case was decided on June 20th. And I will do my best to summarize it here, but I’m sure Bob will correct me on some of the facts. You have a Sylvia Gonzalez who’s a resident of Castle Hills, Texas. She took office with the city council and organized a nonbinding petition that called for Castle Hills, Texas, manager’s removal. I believe she ran her campaign in part because of dissatisfaction with Castle Hills’ city manager.

After she took office, she organized a petition, again, calling for the manager’s removal. And the position was presented at a city council meeting, a very contentious one after which Mayor Edward Trevino questioned Gonzalez about the location of the petition, which was found in her binder. She was then charged with some obscure Texas law, if I’m not mistaken, originally passed to prevent making and usage of fake government IDs.

Bob McNamara: It’s tampering with an official document, which is what you’re charged with if you have a fake driver’s license.

Nico Perrino: And the fact that she put this in the binder, Bob, is the tampering that they alleged she engaged in?

Bob McNamara: That’s what they eventually settled on. The important thing we skipped over here is that at the meeting the petition’s in her binder. She takes it out. She gives it back. She gives it back in full view of a police officer. It doesn’t occur to him that she’s committed any crime. Then, at the mayor’s insistence, there’s an investigation, at the conclusion of which the police say there’s no crime here. We don’t understand how this is a crime.

Then a special investigator is appointed. The special investigator after getting no new information decides that, actually, what this is is misdemeanor tampering with an official government document. He then uses a Texas procedure to walk the warrant to a judge, which keeps the warrant out of the computer system that let's you turn yourself in over the phone, which guarantees that the only way Sylvia can respond to the warrant is to go be booked in person and to jail, handcuffed, and imprisoned for the day.

All of which we said is pretty good evidence that this is retaliation. This isn’t because this is a crime that anyone would prosecute. But it’s because Sylvia spoke out against the mayor. So, the mayor and his political cronies engineered her punishment.

Nico Perrino: Just so we’re clear on the facts here. There’s this petition. She submits it?

Bob McNamara: So, it’s unofficial. It’s not like it’s a petition where you get on the ballot. She was trying to show a lot of people in town don’t like the city manager. So, she went door-to-door and had people sign a nonbinding petition. Their theory was, even though it’s nonbinding, you submitted it to the city council. Once it’s submitted to the city council, it becomes an official document. And touching it in anyway – let’s ignore the fact that the mayor took it home the night before – but touching it in any way is a very serious crime under Texas law.

Nico Perrino: How did she get the petition back? Did she go into the safe, city council, and grab it?

Bob McNamara: It was on the table in front of her.

Nico Perrino: During the city council meeting.

Bob McNamara: During the city council meeting, she picks up the papers. There’s video. The defendants in the case really love playing the video. They think it’s very clear that it shows that Sylvia is up to something when, in fact, it shows Sylvia looking at papers and putting them in her binder.

Nico Perrino: I don’t know all these papers I have in front of me.

Ronnie London: What would be gained by her taking the petition anyway?

Bob McNamara: That is an excellent question. I’m pretty sure there were copies of it. It’s not like she brought it with her. They had it the day before. Everyone got their own copy.

Bob Corn-Revere: I believe there were allegations that were improprieties in how she gathered signatures and whether or not there were some duplicate signatures and that she was gathering it to prevent the investigation of whether or not that had been improper.

Bob McNamara: Of her nonbinding [inaudible – crosstalk] [01:10:08].

Bob Corn-Revere: Exactly. But the idea that the fact that she simply gathered up papers and put them in a binder while she’s cleaning up her area after a city council can be a crime is just astonishing.

Bob McNamara: And it can be a crime because it’s a really broad statute. They use it for fake driver’s license, but it does seem to say if you take an official document and you conceal it, which when you close the binder it’s concealed, technically speaking, the statute reaches this. It’s just this isn’t what the statute is used for. No one in the records we could find had been prosecuted for any of the crimes.

Ronnie London: It wasn’t fully concealed because the mayor could still recognize it.

Bob Corn-Revere: Yeah. It brings us back full circle to the problem with legislatures writing sloppy and expansive laws that can apply to anything.

Nico Perrino: Well, FIRE’s cofounder Harry Silverglate once wrote a book called Three Felonies a Day, which is that, essentially, the criminal code is so littered with laws that can be abused that any enterprising prosecutor could find three felonies a day that someone commits.

Bob Corn-Revere: Right.

Nico Perrino: In this case, Sylvia argues that she would not have been charged with this had it not been for her criticism of the city and the mayor. So, she argued in court that the rest was in retaliation for engaging in conduct protected by the First Amendment.

Bob Corn-Revere: And herein lies the problem, and it gets back to the point Bob was making about having constitutional remedies. And that is the court decided a couple terms ago that if there were probable cause to charge you for the crime for which you are being called to answer…

Nico Perrino: So, probable cause. That means she is likely to have committed or there’s evidence that she – yeah.

Bob Corn-Revere: That there’s enough evidence to believe she may have committed that crime. Probable cause cuts off the ability to file a First Amendment retaliation claim. So, the question was whether or not this case fell into one of the exceptions to that probable cause rule because, as I understand it, she did not contest the idea that there was probable cause to charge this crime but that there was certainly sufficient evidence to show that this was really retaliation and not a good faith prosecution under of that law.

Bob McNamara: That’s exactly right. It’s a really broad statute. It probably reaches putting a piece of paper in your binder. So, we’ll spot you probable cause. That’s probable cause if you think I violated this broad statute. But at the same time, we have all of this other evidence that seems to show that you don’t do this to anyone else, that you’re doing this because you’re mad at what I said about the mayor.

And what the 5th Circuit said in the case is that none of that matters. They said the only exception to this probable cause rule is if you can point to someone who engaged in exactly the same conduct as you without criticizing the mayor who wasn’t arrested. In this circumstance, that’s impossible. No one keeps a record of every person who walked away from a city council meeting with the wrong piece of paper. We can’t point you to that person.

But we have all of this other evidence that we think we should look at. And to the panel’s credit, it said, “Look, that’s a sympathetic argument. We feel for you. Our read of the Supreme Court’s case law is that we have to look for the direct comparison. And since you don’t have it, you don’t have a claim.”

Nico Perrino: So, what is the outcome of this case? It was a per curiam opinion, right?

Bob Corn-Revere: Interestingly, yes, it was.

Nico Perrino: Why is that interesting, Bob?

Bob Corn-Revere: Well, interesting in that you don’t have authorship by a particular justice. Per curiam opinions can denote broad agreement by the court.

Nico Perrino: Does it carry more weight as a result?

Bob Corn-Revere: No.

Nico Perrino: No.

Bob McNamara: No. But I thought an interesting choice was made not to make it an authored opinion. But the upshot is that the court is backing away from the narrowness of its exception to when you can bring a retaliation claim. It says that other evidence beyond this direct comparator evidence is sufficient. And in this case, that kind of evidence of applying a law that is never enforced against anybody can be evidence of retaliation. It’s really a welcome change.

Nico Perrino: In Thomas’ dissent, he says, “There is no basis in either the common law or our First Amendment precedents for the exception created in Nieves and expanded upon today.” You see the court through this term going back to Bruen placing a significant emphasis on the text, history, and tradition of law and the constitution. Here Thomas is falling back on that saying there’s nothing in common law. There’s nothing in our history that would suggest that this exception should exist.

Bob Corn-Revere: But talking about judicially created documents, I wanna take issue a little bit with calling this the Nieves’ exception. Nieves v. Bartlett is the decision I referred to a little earlier creating this probable cause barrier to bring a retaliation claim. It articulated an exception saying if, let’s say, someone’s doing the same thing and they’re being prosecuted for jaywalking but nobody else is being prosecuted for jaywalking, that might create a time when you can bring a retaliation claim.

Nico Perrino: Can I just give an example? So, I think there was a case out of DC involving a pro-life group that chalked Black Unborn Lives Matter across the street here somewhere in DC. They were prosecuted for that, either chalking or graffiti or some sort of vandalism statute. Whereas, previously, a group had chalked Black Lives Matter on the street and was not prosecuted. So, there you have the…

Bob Corn-Revere: That’s a very good example where you do have a comparator. My beef with the Supreme Court is that they’re referring to this as the Nieves’ exception based on that case saying that there’s an exception to the probable cause rule when you have these comparators. Now, in the case of Gonzalez v. Trevino, you now have a somewhat broader exception. We’ll find out in ensuing cases just how broad that is.

But Nieves, the probable cause rule is the exception. The constitutional rule is that the First Amendment prohibits government officials from retaliating against people because of their speech. That’s the rule. Probable cause is the exception in the remedy in whether or not you can bring a claim. So, I think we should understand that as an exception and understand that exceptions to rules and exceptions to constitutional rights need to be interpreted narrowly.

So, this is welcome in that it does make that exception less expansive than it previously was. It may be a picky point to say that we shouldn’t call it an exception. But I think we need to understand that the rule is that retaliation violates the First Amendment.

Bob McNamara: No, I think you’re exactly right, and we made that argument to the court. I think part of the reason it ultimately was a per curiam opinion is the court seems really divided over this. Our oral argument was fiery. My colleague, Anya Bidwell, I think, did an extraordinary job. But the court was really focused on this question and one of the possible avenues to take here was that, actually, Nieves itself is just an exception to the broad First Amendment principle, and it’s only for on-the-spot arrests.

Judge Oldham suggested this in the 5th Circuit. And Justice Gorsuch had an extended discussion of that at oral argument where he said, “Look, there’s a common law torte called abusive process. And abusive process says, sure, you had probable cause, but you did it for a bad reason. Why can’t we do that under the First Amendment? Why do we need all of this Nieves’ stuff in this situation? And I think the court had difficulty resolving some of the more difficult issues in the case, which is why we saw a per curiam position that just said, yes, IJ is right. Go back to the 5th Circuit.

Nico Perrino: Well, we’ll take that, right?

Bob McNamara: A win is a win.

Nico Perrino: I’m gonna move now to Vidal v. Elster, a case decided on June 13th. It involved an individual who wanted to register a trademark, “Trump Too Small.” Under the Lanham Act, which I guess is how registration of trademarks can happen, essentially says you can’t register an individual’s name without their permission if I’m understanding it correctly.

The court rules here that it finds no evidence that the common law afforded protection to a person seeking a trademark of another living person’s name. So, it essentially holds here that you can’t trademark someone else’s name regardless of whether it is pejorative or laudatory, without that person’s express permission Now, I know, Bob and Ronnie, we had filed an amicus brief in this case arguing for a different result, why is that?

Ronnie London: So, what you’ve had are a couple of cases – I mentioned them earlier, Tam and Brunetti in the Supreme Court – examining the denial of trademark registrations for viewpoint-based reasons. They denied “The Slants” because it disparaged a group of people. They denied “FUCT,” F-U-C-T, because it was scandalous, immoral, whatever.

Bob Corn-Revere: Glad you spelled that.

Ronnie London: Well, right, because I wanna be able to use the other one without violating the trademark. So, in both cases, the court said that giving offense or being immoral or scandalous or whatever it is, those are viewpoints, and saying you can’t have a trademark registration because you’ve expressed those viewpoints as unconstitutional.

Now going into it, when we filed our amicus brief, the concern was this. So, you’ve got a rule that says you can’t have a trademark that comprises the name identifying a particular living individual without their consent. And the without their consent part of it has the effect of meaning that if you use it pejoratively in some way, shape, or form, well, of course, you’re not going to get consent. Whereas if you use it favorably, then you might likely well get consent.

Therefore, it creates another one of these viewpoint-based denials or viewpoint-based grounds on which to either grant or deny a trademark. But what the court ultimately did was it construed the provision as not being viewpoint based. It says this is the first time that we are called upon to review a non-viewpoint-based but content-based trademark restriction. And what do we do with that constitutionally?

So, that solved the problem we were most concerned about that you were going to be allowed to be denied a trademark on the basis of viewpoint on pejorative use of somebody’s name. Once you clear that hurdle, the decision kinda makes sense, although it relies, again, on history and tradition. I’m not in love with the frequency with which that is coming up in constitutional law.

This is going a little bit beyond our scope here. But there’s a Second Amendment decision that came out this term that turns almost entirely on history and tradition, and there were two opinions by Alito and Gorsuch that are very heavily tied into originalism. Your mileage may vary when it comes to originals, and let’s just leave that there.

Bob Corn-Revere: But that’s one of the interesting features of this where Vidal v. Elster was a nine to nothing decision. It ultimately turned on history and tradition. Yet, you see a lot of variation among the conservative justices about just how to apply these arguments and what it means to rely on historical evidence.

Nico Perrino: Can I read from Sotomayor’s concurrence, which is joined by Kagan and Jackson. She writes, “I am reluctant to go further down this precipice of looking for questionable historical analogies to resolve the constitutionality of Congress’ legislation. I would instead apply this court’s First Amendment precedent just as the parties did in arguing this case.” So, do we as First Amendment free speech advocates have a problem here if the court’s gonna down this originalism road? Because we know how the First Amendment fared for the first hundred and some odd years of this country.

Bob McNamara: I don’t know if we have a problem, but I do think the historical discussion in Vidal points to some problems with how the court has been applying its history and tradition test. For one thing, none of this was in the government’s briefs. This isn’t how the solicitor general defended the statute. This is just the court reached out and grabbed this.

Nico Perrino: That’s what Sotomayor was referencing, yes.

Bob McNamara: Also, the question becomes – if you’re doing history and tradition, which history matters? So, the premise of Vidal is, look, trademarks never encompassed a trademark that included someone else’s name. And, fair enough, as a historical point that seems true. But the evidence they cite for that – suddenly, there are all these cases they’re citing from the late 19th Century. Did the cases in the late 19th century change the meaning of the First Amendment? I don’t know how they would do that.

The danger, I think, in history and tradition is that if you’re not very careful – and this is when it matters; this is the time period that matters; this is the party that has the burden of proof – you end up with what the Chief Justice once said about citing international law, which is, it’s walking into a crowded room, looking around, and picking out your friends.

Bob Corn-Revere: Justice Barrett made the same point in this context.

Nico Perrino: I think the point was also made in the context of the recent Trump immunity case as well. I was just listening to Advisory Opinions this morning, which is a popular podcast hosted by Sarah Isgur and former FIRE President, David French. They were talking about how the court is leaning into the text, history, and tradition arguments in deciding its cases, but it was almost totally absent from the Trump immunity case.

I know we’re not discussing the Trump immunity case, but we are discussing the consistent application of these principles through the various cases the court’s deciding. Yeah, it does seem like they’re inconsistent in applying it. And I do personally have a concern about applying these principles to the First Amendment context where the history and tradition isn’t always as solid as one might hope it would be.

Ronnie London: Although, if we put aside how we got there and – again, I know that’s no small thing. But if you put aside how we got there, the nut of this decision is basically that, well, of course, trademark decisions are content based. How could they be anything but?

Bob Corn-Revere: By definition.

Mr. Douglass: They are a designator of origin. To qualify, you have to be a designator of origin. You have to be non-generic and a bunch of other things. There’s no way to determine that without looking at the content of the mark. We know from Reed v. Gilbert that if you have to look at the content of the speech, it’s a content-based regulation.

So, we have two choices here. Either we’re gonna subject every PTO decision about a trademark to strict scrutiny, or we’re gonna say, in this one particular area, which is inherently content based, we’re not gonna do that. And that’s where the court ultimately comes out here. Again, the path that it took to get there might be concerning, but I think the bottom-line logic of the outcome does make some sense.

Bob McNamara: And that part of Vidal, I think, may end up being the part that has the most impact outside of the trademark context because the court does reaffirm this is the test for when a law is content based. And, obviously, this law is content based, which is an issue where a lot of appellate courts have gotten confused in recent years.

Bob Corn-Revere: That’s right.

Bob McNamara: So, I think it’s helpful to have the court, essentially unanimously, say, no, no, no. It’s very simple to figure out if something’s content based. This is content based. It doesn’t end the inquiry here because of concerns you need to trademark.

Bob Corn-Revere: The special considerations, yeah.

Ronnie London: And also, you go back to the Jack Daniels case where they say the constitutional considerations don’t come into until the second step of the test. The first thing you have to look at is whether it’s being used as a designator of origin or whether it’s being used for purposes of parody, satire, or something else. These do kinda fit together.

Nico Perrino: I wanna move now to the social media blocking cases. That’s where I think we’re gonna wrap up. These are two cases that I think were argued on the same day and decided on the same day. That was March 15th. O’Connor-Ratcliff v. Garnier and Lindke v. Freed. Bob, I’m gonna turn it to you. What ultimately did the court decide in determining whether an individual, a government official’s actions on social media to block or moderate comments or users from even seeing what they’re saying on social media, became state action subject to First Amendment analysis and scrutiny?

Bob Corn-Revere: Ultimately, the court did pretty much what it did in the NetChoice cases. And that is it vacated the two decisions below. And the two decisions, as in the NetChoice cases, had gone in opposite directions. One saying it was state action for the public official to block users, the other one saying that it was not state action. The Supreme Court said both are wrong. Here’s a new test for how we’re going to decide these cases going forward.

We had filed amicus briefs in both of those cases and advocated upholding one and reversing the other. But the net effect of the Supreme Court’s decision in articulating the new standard essentially embraced the principles that we had advocated in our amicus briefs, and that is it is not a simple decision of whether or not the state basically controls and runs the website on behalf of the official making it state action. You look at a range of factors. First, whether or not the official has the authority to be making statements on behalf of the state rather than on their own personal basis.

But then you look at a range of factors on whether or not they are, in fact, using it for those official purposes. So, from our standpoint, the ultimate 9-0 decision in this case was one that did lay a First Amendment groundwork that didn’t create an easy way for public officials to evade constitutional responsibility when they used their personal websites for their government jobs.

Nico Perrino: So, let’s say you have a government official who has a Facebook page. On it, they’re posting about their birthdays, their kids’ birthdays, their wedding anniversary, lots of personal stuff, but they’re also opining on things they’re doing in their capacity as a city councilmember, for example.

Bob Corn-Revere: Well, that’s exactly what was happening in these cases. You had people who were using their personal pages that had started as personal pages. But then when they became public officials, they essentially used it in conjunction with all the personal stuff they posted and also used it for official business. Now, you can dispute those facts below. But that’s essentially the allegation of what was going on.

In one case, you had a city manager who was doing that, and in another case, you had a school board member. So, these were really stand-ins for the real question, which had been presented with former President Trump’s use of his Twitter account.

Nico Perrino: Yes, I was gonna ask you about that.

Bob Corn-Revere: Right. That’s where this case started. You have lower courts at least deciding that the way in which the former president was using Twitter was essentially to create a public forum. He was using it for official purposes. He was having government employees manage it for him. He was doing all of this stuff. The lower courts said, well, if you look at the use and appearance of the website, all of these factors say that this really is a form of state action, and you can’t just arbitrarily cancel users and delete comments from your critics. You have to accept the obligations of a public forum once you’ve opened one.

That case was going to be reviewed by the Supreme Court. But when President Trump left office that case was mooted. So, these cases were accepted in tandem, like the others I’ve mentioned before, to decide that basic question. And the reason it’s important is that the use of personal pages for official business is endemic at all levels of government. You have people who have official pages for their offices. They may use them, and they may not. But they may, and many do, conduct most of their business on their personal pages.

Members of Congress do it. Certainly, President Trump had used his personal page that way. And in these two cases, the Supreme Court confronted lower level officials that did that. So, the question becomes – when can public officials become responsible as state actors? When are they acting under color of state law to essentially use their personal pages as a public forum?

Nico Perrino: So, social media companies or platforms shouldn’t be common carriers, but they can be public forums?

Ronnie London: Well, the comment section – when a state official using it for official purposes opens it for comments of third parties, the state official has created a public forum, not the social media company.

Bob Corn-Revere: That’s right. And the decisions were clear that that wasn’t was this was about. It wasn’t converting Twitter writ large as a public forum. It was the particular account being used for government purposes that was considered to be a forum.

Bob McNamara: And I think it’s important. This is not a question. It arises in the context of social media because it makes it easier for all of us to create a public forum, but it’s not a question unique to social media. If there’s a lecture hall in my town and I have rented it out every Monday night, I just have a standing date, and then I’m elected mayor, I don’t lose the right to have my standing date in the lecture hall just because I was elected mayor.

But if I start using my standing date to host the city council meetings, then I’m probably gonna be obligated to allow people to speak out at city council meetings, none of which deprives the lecture hall itself from its property right in owning its lecture hall. I just happen to have leased that, and then I have used it in my capacity as mayor to host the city council meetings.

Ronnie London: And it goes beyond that because it’s not just a question of whether you’ve opened a forum or not. When it comes to your use of social media, it can be implicated in even things like open records laws. The question is – are you using your personal cellphone? Are you using your personal social media account for conducting government business? If you are, then you’re creating public records with it.

We had a case with the mayor of Detroit some years back. The whole question was whether his text messages were recoverable under open records law. And the ultimate issue was – was he using it for official business? This test has applications beyond just the comment sections.

Nico Perrino: Do the social media companies have any requirements under this reasoning? For example, are they now required to remove the ability for public officials to moderate?

Bob Corn-Revere: No.

Nico Perrino: So, the entire burden, the responsibility lies with the public official who uses these private means to…

Bob McNamara: Just like the guys who own the lecture hall don’t have to send their flunkies to [inaudible – crosstalk] [01:33:05] city council meetings. If they do, they would run to me.

Bob Corn-Revere: Public officials do this volitionally. Nothing requires them to use their personal accounts for public business. And it’s only those that have chosen to that then run the risk that it’s going to found to be subject to constitutional obligations.

Ronnie London: And there’s an admonition at the end of the majority decision specifically about those kinds of mixed uses that you may be forfeiting the ability to exclude if you do so.

Bob Corn-Revere: And by the way, any public official can have their personal account. This doesn’t affect that whatsoever. They can run their campaign using their personal social media. Being a candidate doesn’t make you a public official even if you’re currently holding office. That is private speech that is constitutionally protected in its own right. But once you are an official using your personal social media account for public business, then you run the risk of these constitutional obligations kicking in.

Nico Perrino: Could I just ask? We’ve covered the cases we’ve needed to cover. But I want to ask because I imagine some of our listeners will write to me about this, the Chevron case, overturned Chevron deference. This is the deference that’s given to administrative agencies in implementing laws where requirements are unclear. Any First Amendment implications from this?

Bob Corn-Revere: Absolutely.

Nico Perrino: Very quick on the jump there, Bob.

Bob McNamara: End of the podcast.

Bob Corn-Revere: Because you hear all of these sorts of apocalyptic descriptions of the decision saying, “Oh my god, the expert agencies protecting the environment, the EPA, are going to be hobbled, and you’re going to put federal court judges as czars over the administrative state.” But keep in mind that these were all ways in which you were expanding agency power at the expense of the rule of law, essentially, oversight by the courts as to what legislation actually means. I think deferring to an agency’s interpretation really makes very little sense when you have courts that are charged with that very function of deciding what the law means.

The First Amendment implications come because I used to work at the FCC. And that kind of administrative deference was something that agencies that regulate speech day in and day out count on. They count on courts giving them the benefit of the doubt when they’re interpreting how far they may go in regulating speech. We saw this constantly in the cases over broadcast and decency where the agency would argue in every case that the court must defer to it.

Well, two things about that. One is agencies have no special expertise when it comes to interpreting the statutes under which they operate. Courts do. And the other is there are constitutional issues here involved as well. And the agencies being agencies would always push that boundary and say the courts should defer to them on constitutional questions as well. And, again, that is really getting the law wrong. So, the removal of Chevron deference will be a net positive for free speech when it comes to a lack of deference, no longer deferring to administrative agencies that have the power to regulate speech.

Ronnie London: Let me ask you a question.

Nico Perrino: A quick question for Bob, were you at the FCC before Chevron and after Chevron? Did you see how it might’ve changed during…?

Bob Corn-Revere: Chevron was decided in 1984. I went to the FCC in 1989.

Nico Perrino: I’d be really interested to hear how it might’ve changed how agencies approach things within the agency.

Ronnie London: Geez, Bob. You’re old.

Nico Perrino: I did not.

Ronnie London: In a perfect world, this would be a net-net because in theory, courts getting agency decisions that implicate constitutional questions, especially First Amendment questions, should be conducting de novo review of the record. They should be interpreting statutes in a way that renders them constitutional. It should be interpreting regs in ways that render them constitutional. Now, the problem as Bob outlined it was that the courts didn’t always do that because Chevron led them to give more deference than they should. So, it will be a net positive. It will put the courts back into doing it the right way.

Bob Corn-Revere: Well, and if it works as we hope it will, it may force Congress to be more clear when it creates statuary mandates.

Bob McNamara: Yes.

Nico Perrino: Bob, do you have anything else you wanted to add?

Bob McNamara: I concur with my learned colleagues.

Nico Perrino: Very good. Hey, Ronny. We got some news just before we jumped into this studio. Do you wanna give our listeners an update on that?

Ronnie London: There was a petition for cert on the decision out of the – wait for it – the 5th Circuit where there’s age-verification for adult content law. They had been coming up in other states. They’ve been getting challenged. They’ve been mostly getting struck down, Indiana just most recently last week. Somehow the 5th Circuit, despite Reno almost 30 years ago –

Bob Corn-Revere: It will despite four different cases established.

Ronnie London: – right, right, the oldest being Reno – somehow managed to find age-verification constitutional under an analysis that – well, let’s just leave it as saying it left things to be desired. In any event, the court this morning granted the petition for certiorari of the Free Speech Coalition to review that case, and we’ll be looking forward to seeing it taken up next term.

Nico Perrino: And we discussed age-verification on this podcast during the last episode. So, if you haven’t checked that one out, please do. I think we’re gonna leave it there, folks. That was FIRE General Counsel, Ronnie London. Ronnie, welcome. Thank you. Welcome. Are we starting this podcast over again? Ronnie, thanks for coming on the show. We also have FIRE Chief Counsel, Bob Corn-Revere, and Institute for Justice Deputy Litigation Director, Bob McNamara. I am Nico Perrino.

This podcast is recorded and edited by a rotating roster of my FIRE colleagues, including Erin Reese and Chris Mulkey. To learn more about So to Speak, you can subscribe to our YouTube challenge or Substack page, both of feature video versions of this conversation. We’re also on X by searching for the handle “Free Speech Talk” and on Facebook.

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