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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 FIREs 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 whos is FIREs Chief Counsel. Bob, welcome back onto the show.

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

Nico Perrino: So, were gonna try and take this in reverse chronological order with one exception, and our listeners will get that soon because weve discussed some of these cases back on past podcasts. But we havent discussed, for example, the NetChoice case. We havent discussed Murthy. We havent discussed Gonzalez v. Trevino. Theres some cases we need to get to, and Im 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 FIREs members to participate and ask questions of their own about this past Supreme Court term. Ronny, I think youre participating in that. We also have Will Creeley, FIREs Litigation Director or Legal Director, excuse me and Darpana Sheth, FIREs Vice President of Litigation.

So, without further ado, lets 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 didnt 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 thats 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 heres 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: Youre challenging the law as a whole.

Nico Perrino: So, its 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: Thats 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, thats right. The court, while it didnt decide the ultimate First Amendment issues and didnt 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 cant 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 Amendments 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 Kagans 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 its nice to see the court articulate them. But NetChoice itself, I dont think, really accomplishes very much. And I think in part it doesnt 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 youre extremely grumpy is you dont do a very good job of defining what youre trying to legislate against.

Bob Corn-Revere: Its not just from legislators that are grumpy.

Bob McNamara: The problem with legislating, Bob this is why legislatures shouldnt do things. But, no, it kinda emerged at oral argument in this case. Everyones 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 thats 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 thats the issue that really did emerge and dominated the oral argument in the case. My concern with this is that the courts 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, lets 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. Thats 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. Thats what I found a little bit well, I dont 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 theres moderation. Nobodys complaining about, hey, I cant get Gmail because of my political views. Thats not happening. You dont 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. Im glad they said free speech-reinforcing things in their balance of the decision, but I do wonder whats 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 cant do either one of those things. Lets be clear. You cant discriminate based on viewpoint, which means you cant 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 cant 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 Generals kinda saving construction of the Texas law was whoa, whoa, whoa, were 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, thats not viewpoint discriminatory at all then. Problem solved.

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

Nico Perrino: In Florida, you have a slightly different piece of legislation. As you say, its a little bit broader in that it applies to internet platforms. But its 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. Its 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 didnt 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, thats 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, its nice to see those basic principles reaffirmed, and I am glad to have a left-right coalition firmly saying that the government cant 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 wouldve won by now.

So, obviously, its 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 its 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 thats provided in Kagans majority opinion is dicta. So, what can we take from it?

Bob Corn-Revere: Well, in a sense it is dicta in that its 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 didnt mean it. Thats 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 isnt a precedent as in, say, striking down a particular role.

Ronnie London: Heres a minority view. I dont 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, theres a footnote in the decision that explains

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

Ronnie London: Well, thats the technical term.

Nico Perrino: Weve got a lay audience on this podcast.

Bob McNamara: Theres a Latin phrase for that.

Bob Corn-Revere: Thats right. Thats 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 didnt 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 doesnt 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 courts compelled speech cases, you dont 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 shouldve applied if you had conducted the analysis properly. I know Im going out on a limb a little bit here by calling it necessary to the decision, but I dont think its 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 its 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 courts 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 hadnt 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 dont 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 its more than dicta maybe less than a ruled decision. But, nonetheless, I think its 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 Im 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 didnt grapple with, but they should have.

Bob Corn-Revere: They do. Theyre 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, its 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 youll get about this court saying its this conservative supermajority of six justices. Well, thats 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 its 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. Youre a must-carry because you have this route. You have this power line, and youre some type of technical monopoly. Thats 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 youre saying there, Bob, is that theyre 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 ones gonna build a railroad line next to yours. So, you have essentially a monopoly over the two cities that youve 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. Everyones 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. Its a little bit ironic to say, Okay, wait. Thats a problem. Lets 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 youre talking about railroads or stagecoaches or waterways, those things were adopted in the communications world only by analogy. When the Radio Act of 27 and the Communications Act of 1934 were adopted, they basically were saying, Why dont we just borrow that concept of common carriage from the transportation world, and well 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 didnt 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, youre 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 theres no obstacle. And as weve 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 dont 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.

Im 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: Thats 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 dont think theyre distinguished.

Nico Perrino: No, I dont 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 cant be sorted through by simply humans. And then she has this question, But what if a platforms algorithm just presents automatically to each user whatever the algorithm thinks the user will like.

Ronnie London: Well, thats still a choice

Nico Perrino: Its still a choice but its 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: Thats 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 dont like certain kinds of speech. They dont like hate speech and, again, Im 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. Its hard when youve 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.

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So to Speak Podcast Transcript: The First Amendment at the Supreme Court - Foundation for Individual Rights and Expression