Advisory Opinions - Free Speech vs. the Algorithm

Episode Date: September 5, 2024

Sarah details life under a wicked curse and David defends his position in The Dispatch's fantasy football league. Oh, and today's legal theme for the podcast is the First Amendment. The Agenda: —Role of public defenders —Criminal justice reform —Horrific TikTok algorithms and Section 230 —Gray areas of Section 230 —The back and forth with Sarah Palin's defamation case —Should the dues from the Oregon Bar Association go toward anti-Trump op-eds? Show Notes: —Last Tuesday's Advisory Opinions episode Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including Sarah’s Collision newsletter, weekly livestreams, and other members-only content—click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, that's David French, and David, I think my fantasy football league is cursed. Wait, which one? The Dispatch fantasy football league? Oh, I wasn't allowed into the Dispatch one this year. Oh, you weren't allowed. You didn't join.

No, no, I said I would like to join, but if there's an odd number of people, I'm happy to be the person that doesn't get to join. And so I wasn't invited to join. Hmm. That's distressing. This is my personal league. And we did the draft last night. And the dad of the house,

as the last draft was happening, knocked over his wine glass, shattering glass and wine all over the floor and into the vent that's on the floor. Which, and like out the window that it was, it was like a whole thing, which is not great when you have like a new baby and a toddler in the house. Like broken glass is like the number one, like now we must search the floor.

All of us must use our feet to try to collect glass into our feet. Okay, so that was not great. But now Scott and I have to get home to relieve the babysitter. That's made us a little delayed. I go outside and there's an adorable little bunny. So obviously I don't want to disturb the bunny. It's a new house that my friends just moved into. So I'm not as familiar with the terrain as I was in the old house. So I take this little like side path with my laptop and my phone, and there's stairs and I miss it. And I mean, I miss it, David.

Oh no. Totally fall down these cement stairs. My laptop, my new laptop that I just bought, totally broken, not functional anymore. Oh, no. Neither is my toe, which is totally broken, not functional anymore. And it looks sort of like one leg was in a car accident.

It is like knotty bruises and skin. It's all, it's pretty bad, David. And I think the real insult to injury was that I had to like sit there for a few minutes and Scott was with me and I was like, let me just sit for a second before I can move. And the bunny was still there, hadn't moved, hadn't disturbed the bunny whatsoever. Well, mission accomplished, I guess.

I mean, sometimes you have to pay a cost to take care of nature, Sarah. So is your toe literally broken? Yeah. You're kidding. Are you in it? It's why we had to start this podcast late cause my laptop that I used to do this podcast Sure, Sarah. So is your toe literally broken? Yeah. You're kidding. Are you in there? It is why we had to start this podcast late because my laptop that I used to do this podcast with all of my tabs that I had been studying yesterday, gone, totally gone.

Yeah. So like this will have long-term, and by long-term I mean month, a month or so, consequences for me. Yeah. Yeah. Oh man, I am sorry. Goodness gracious. So like don't you think our league might be cursed now? Oh, I think you might be cursed. I'm not so sure about the league.

Like there's, that's felt more targeted than your league. I don't know, Sarah. You know, when they do the stats afterwards of like who's predicted to perform the best. I have the number one team in the league. Oh, do you? Yeah. I am projected third one team in the league. Oh, do you? Yeah. I am projected third in the dispatch league right now. So it's possible that this was all rigged and that the number two secretly pushed me down the stairs.

Oh, I don't think that's just possible. I think it's probable. I got Christian McCaffrey and they all want him. And they're trying to knock me off. All right. We have such a packed pod today. I really doubt we're going to get through it all. So consider this part one of two pods that are action packed with circuit drama.

But before we get to any of that, David, I wanted to go back and talk about that Williams case that we spoke about. This was challenging 922 G, in the heartland, felon in possession of a gun. We had, after having this wonderful and impactful conversation about criminal justice reform, frankly, we mocked the whole endeavor that

a guy with two armed robbery convictions, a former felon in possession conviction, was now thinking he was the best vehicle to challenge 922G and that the circuit court gnawed dogged him pretty hard on this and was just like, look, there might be questions where someone is convicted of tax fraud and then they're arrested in possession of a gun. Maybe that person can challenge 922-G1, but you ain't it, sir. David, I got the kindest email

from his federal public defender. Yeah, I know. I sent it to you and I asked him if we could read it. His name is Brian Mounts from Tennessee. Because like with so many cases, they're all more complicated and they're all more nuanced and people's lives are more nuanced. Anytime you're making fun of someone, probably you're the bad guy. Probably. Not every time. But most of the time, you're missing key facts. And look, I still think that Mr. Williams is a terrible vehicle for challenging 922 G1.

But boy, it's pretty bad that we were glib about it on the same podcast that we talked about criminal justice reform. OK, so I'm going to read this email. Thought I'd send you a follow up on Mr. Williams and to defend myself and the case. Number one, Mr. Williams was pulled over on his way to work. He was an assistant manager at a sandwich shop. Officers asked him to step outside of the vehicle. They found a cigarette butt that had traces of pot on it. They searched all over his car and found in the trunk a firearm and a bag of weed. Mr. Williams was brought in for Bond.

He was assigned, I was assigned to him through the federal public defender. I argued he should be out on Bond given he was not arrested under dangerous circumstances and he had a job and helped provide financial support for his child. Fawn was denied because it's a firearm related case. Bruin came out, so I attempted to file

Second Amendment motions. Rahimi might've just come out at the Fifth Circuit when this case was filed. I was told by certain AUSAs that if I brought these motions, they would not ask for reductions and acceptances from the guidelines, or they might go for the high end rather than the low end. I will also say I've met many AUSAs,

I believe are honorable, good human beings, and Mr. Blanchard, the prosecutor in this case, is certainly one of these good men and gave me his word. He'd go for only the middle of the guidelines, as he almost always does, and I took him at his word, and he has never faltered on that when litigating with me. After six months, Mr. Williams entered a guilty plea, but we preserved the Bruin appeal.

And by the way, for those, that's a thing, right? You can basically plead to the facts, but preserve the law. This is what I suggested that Hunter Biden do before his gun trial. And I still have no idea why they wouldn't plead to the facts. Basically, I am guilty of these facts. We don't need to have a trial for this that would be messy

and put my family through this pain. I just want to preserve my legal arguments that this law is unconstitutional. Anyway, at sentencing, Mr. Williams' family came. We discussed with the judge, Mr. Williams' background. He grew up destitute, a two-bedroom house with eight of his siblings and cousins and his meemaw. His father had left them and his mother was ailed with addiction. A different family member used to beat him and his cousins. They had no money. He would eat out of the trash at school.

One evening while sitting in the cold, dank morass, that is the penal farm, Mr. Williams whispered to me, he didn't mind the poverty so much. It was the kids that had made fun of his stench, his bruises and his stupidity. He's dyslexic. He threw his own free will and accord, fell in with a bad crowd. In the 80s, he started drug dealing and became addicted to drugs. In the 90s, he received his robbery charges. His attempted second degree case wasn't him hiding the gun for a friend, as I had said

on the podcast. I had said that his, previously he was hiding a gun for a friend, which was a pretty bad idea. It was for his child. I'm not sure what I would do if my kid came to me asking for help. Mr. Williams made a decision that day. He hid the gun. That gun had been used in the murder

or attempted murder of a police officer. Judge Parker sentenced him to just below the guidelines, 50 or 51 months if I recall correctly. Judge Parker's a great judge. Sarah, I say all this to state, was Mr. Williams really dangerous? He received a multiple year sentence and got lucky

for possession of a firearm. Wouldn't it perhaps be better to have just gotten him on drug possession and perhaps attempted distribution? Take Rahimi. He too could have been brought to justice with assault charges or attempted murder. Why are we bringing countless charges under firearms possession? Many bring guns to defend themselves. My old case, Grover Vaughn, is one such case involving an old football coach, ex-con, on his own property shooting at teenagers who were committing crimes in his neighborhood and coming at him with a gun, which is about as close as I could get to a case I'd want to bring challenging 922G. Range is no doubt the best, but I'm from Tennessee, so...

I became a public defender not because I'm an ideologue. In fact, I'm a conservative. I became a public defender because I believe in ideologue. In fact, I'm a conservative. I became a public defender because I believe in due process, fair treatment, and halting the overstretched hand of a reckless and insipid government. Lastly, Mr. Williams' case leaves open a clearer path of an as-applied challenge that Rahimi didn't neatly carve out. As you aptly put it, dangerousness is the name of the game. All we can ask for is each judge takes each person as an individual and really ponders if this specific person is dangerous

and what benefits they ought to reap or rights to extinguish. Thanks for coming to my Ted Talk. Sorry for the long email. And then he followed up with one quick note. I don't mean to minimize, surely the folks he harmed in the 90s were truly harmed and the system didn't really help them either. I've also represented really, truly horrible people, rapists, murderers,

cartel members, gang members, big time drug dealers. But honestly, at least half of my clients were guns or drugs, not mass amounts either, or supervised release violations, which I have a ton of beef with that your constitutional rights just really don't apply anymore. Most were addicts, poor, and a few were borderline illiterate. In fact, one of my favorite activities with clients is to bring a book like Make Your Bed by Admiral McRaven for us to read together. And they faced an inadequate system that with the one line of preponderance of the evidence could get an enhancement of years or been found to have violated supervised release.

I won't share it here, but some of the stories you hear in jail are pretty startling for the soul. There's also plenty more that Mr. Williams shared with me, but they weren't in his sentencing or plea, so I'm not at liberty to share them. Finally, the trial penalty is quite real. No acceptance, enhancements galore. So there's real trepidation in pursuing that path. I'm really lucky. The judges in West Tennessee are all fantastic.

The AUSAs, in my experience, were for the most part forthright, intended not to hide the ball. Just for the record, though, on the flip side, you'll meet some defense attorneys who are hardcore true believers and will purposely burn prosecutors and tarnish any goodwill that they might have forged. We are all human. Bringing humanity to criminal justice might do us all a little good. And I'm very thankful to you and David for shedding some light on this stuff.

Proud to be an American and proud of our system. We don't need to toss the baby out with the bathwater, but we might need to fix the tub. I like that. That's a wonderful email. You know, it is kind of ironic that we were like, hey, we need to fix the system and then yay system. But, you know, what I found interesting here is

it does raise, that account raises a lot of interesting questions. So if you have committed crimes and decades ago, is it actually the case that you should lose your Second Amendment rights of self-defense forever? Is there a kind of pattern of practice of good behavior that could possibly allow you to restore your rights? That's an interesting question. The other question is this very interesting notion

that he raised, because again, I agree with you, Sarah, that after hearing the email, I've got, you know, it provides a lot more color to the case. I still think the Sixth Circuit made the right call here. The Sixth Circuit decision was the right decision here. But the other question was, okay, in this sense of prosecutorial discretion, is this a situation where you really do go

for the gun charge under these facts? Is this when you should exercise your discretion to bring down the hammer on this guy? And that is, to me, that's a separate question from, was the appeal under Bruin Rahimi, which David Ladd has now dubbed Brahimi, I really appreciate that shortening. Super helpful.

And under Brahimi, I think he should lose. But that is not the same thing as saying, the case should have been brought like this in the first place. So it's a very interesting question. And, you know, I'm half curious that is the prosecutor in the case listening? And does he have an email fired up and ready to go to get the prosecutor's side as to, wait a minute, wait a minute, I'm with you. I like to exercise prosecutorial discretion in a compassionate way when it's appropriate. But there's something missing here from this story, and so I am somewhat curious.

We'll try the case right here, y'all. You email us. But I do think it is an interesting question as to when do you exercise the discretion, and I think that the possibility of future harm definitely weighs heavily on a prosecutor. So if you say, yeah, it's been decades since they committed a violent crime, The possibility of future harm definitely weighs heavily on a prosecutor. So if you say, yeah, it's been decades

since they committed a violent crime, yeah, they're an assistant manager at a sandwich shop, and they're providing for their family. All of that is really good. But what if I don't prosecute this gun crime? And what if he hurts somebody? And then the victim's family comes to me and says, you mean to tell us you had him for a gun crime and he would not have been on

the streets and now our family member is suffering or died. What are you even doing here? And I do think that that hovers over people, that kind of concern that an act of compassion can actually come back and bite them. So I have a few reactions, one of which is, David, when you and I have talked in the past in the wake of mass shootings about what our solutions to gun violence would be, first of all, I hope that listeners have understood that we have a lot of humility about this topic, because obviously if it were easy to solve,

we would have solved it by now, and we haven't. So take all this with a grain of salt. David, you've been very in favor of red flag laws. And I've said that one of the areas that we don't do enough on is prosecuting gun crimes. That there's a lot more gun crimes that could be prosecuted, that we don't have the resources, both in the sort of penal system as a whole,

but also just the prosecutors. They've been told to prioritize other stuff. But if we really wanna get guns off the street and the people who have illegal guns to not have them, prosecute the gun crimes that we have, passing more gun laws to make more guns illegal doesn't do any good if you're not dealing with the guns that are illegal right now.

This email is so interesting because it challenges that idea directly from the other side that you're sweeping up a whole lot of people in this mass of gun crimes that you can prosecute and ruining their lives, basically. Who were not dangerous when they were arrested. And David, to your point, I think it's really interesting here.

These circumstances under which he was arrested, clearly not dangerous circumstances. And yet, his record certainly is one that's dangerous. And so which do you look at, basically, when you're deciding when to bring those charges? So I just find that really interesting. I want to chew on it more of how to do that. Because again, passing more gun laws,

if we're not willing to prosecute the gun laws that we have, ain't gonna do you any good. And David, your red flag laws would tend to help far more in what I think now I've started calling terroristic mass shootings. They won't help in mine. Most of the ones in those types of shootings, the gun's legal or they weren't pulled over.

There was no sort of repeat interactions with law enforcement. the ones in those types of shootings, the guns legal, or they weren't pulled over, there was no sort of repeat interactions with law enforcement. Prosecuting gun crimes, however, will, in theory, get some of these guns off the street and the people who have illegal guns off the street who are committing the majority of the, I hate to call them, the day-to-day mass shootings,

if you will. The wrong place at the wrong time in a block in Chicago type mass shootings. So yeah, I don't know. But overall, David, as we have had this conversation on criminal justice reform, here are the two things I'm pretty sure that I believe. All right. One, we should be paying public defenders the same as prosecutors.

There shouldn't be an incentive for the better people, meaning like the more talented or something who are more easily going to get hired, to be prosecutors rather than defenders. The government already has lots of things in its favor. If anyone is going to get paid more than the other side, it probably should be the defenders getting paid more. But that's not the case. Defenders nearly universally get paid less than prosecutors in these states. Number two, I think I am convinced that our current plea bargaining system has to exist and also shouldn't exist in its current form and that we should have a limit what you can plead down to. So maybe a 10% discount if you plead. I'm willing to move on those numbers. Maybe it's 20% on the time that they're going to suggest versus the time available if you

get found guilty at trial. And I think no dropped charges, which is going to make this, it's going to make it very difficult in a very different system, but it will also change how you charge people in the first place. Right. And yes, it means a lot more trials, which also means a lot, at least in our current system and the current resources that we put toward it, a lot fewer people getting charged because you're going to have to place resources really differently. If you know instead of 2% going to trial,

it's going to be 20% going to trial, that alone would massively upend resource allocation. So we might need more resources for our criminal justice system, but I think that's where I am right now. You know, on the point of resources for criminal justice, it really is, it truly is an under-resourced system. And it's a profoundly under-resourced system because anytime you sit there and you say,

okay, what if everyone involved in this process exercised their constitutional rights? Would it still be working? And if the answer is absolutely positively no, the whole thing would come to a grinding halt. Now, of course, of course, under any system, any reform system, there would still be an awful lot of plea bargaining.

So it's not true that you would ever have a system where everyone exercised their right to trial by jury. There would be an awful lot of plea bargaining under any system. 20% off your sentence is still 20% off your sentence. Exactly. With a high likelihood of getting convicted at trial. Right, right. There's going to be plea bargaining almost no matter what system you set up. But we've definitely put our thumbs on the plea bargaining scales in a

pretty dramatic way. And one of the things that concerns me about the under resourcing of the system, because a lot of other people get involved or in the government are like, get in line, dude. to the system because a lot of other people get involved or in the government are like, get in line, dude. We're all under resourced. There's very few areas of government that are not under resourced in some way or inefficiently resourced might be a better way of putting it in some circumstances. But if you think about the consequences of criminal justice failure to our national fabric. It's very severe. 2020 was not that long ago when a policing failure and resulted in a filmed murder on the streets and that then tore apart the country

for the next three months. I mean, this is a kind of situation where the failures are deeply consequential, not just for the next three months. I mean, this is a kind of situation where the failure, failures are deeply consequential, not just for the people involved, but also for our national fabric. And so better resourcing, and I'm so with you, on resource, resource public defenders well,

they should have very similar budgets. You know, I know prosecutors have to build a case and deploy a lot of resources to build cases and things like this. And there are reasons why a prosecutor's office might end up with net more spending on it because of investigators and all kinds of other elements. But a pay disparity, a huge resource disparity

adds up to what? A lot more coercive plea bargaining. a pay disparity, a huge resource disparity, adds up to what? A lot more coercive plea bargaining. And so there are a number of things that we can do without upending the whole system that I think can improve it, but it's gonna require more resources. Last thing that Brian added, PS, I agree with you, Sarah.

Someone should really only pursue a JD if they want to be a lawyer. Thanks, Brian. Okay, Brian, I appreciate your input, but you're not a SCOTUS justice, so... We've already determined they're determining this case. They're deciding this case. Hi, I'm Chris Stierwalt, and I have devoted my vocational life for decades to my fascination with politics.

I love it. But I don't think you should have to in order to be a good citizen of this great Republic. That's why every week I publish Steyer Walt on politics. My newsletter at the dispatch intended to make sense of and provide context for this crazy election year without dragging you into the muck. That's why we are offering for a limited time only 10% off of your dispatch subscription.

All you have to do is enter the magic code. That's Pundit10 and you can get this limited time offer for 10% off of your subscription. And if you're already a subscriber, make sure you go to the dispatch.com, click on newsletters and sign up for Steyrwald on politics. All right. So let's move on to some of these circuit cases. And we're going to come back

to more Second Amendment cases. And we're going to also do some First Amendment cases. And we've got some admin law case in a post LLoper-Brite, post-Chevron world. But first up, David, we've got two Section 230 cases. And to remind everyone where we last left off in this saga, David, you and I keep predicting that this term will be the tech term at the Supreme Court. Lucy and the football repeating over and over again, two terms in a row.

Two terms ago, we thought that these two cases involving Twitter and Google had teed up this question really nicely about basically, it was the victims of terrorism abroad arguing that these websites' algorithms had prioritized terrorist-inducing slash terrorist-recruiting material that had led to the death of their loved ones. And so we had lots of conversations about what exactly is the algorithm and how does it work into Section 230 of the Communications Decency Act, which says that these platforms, when they publish third-party speech, are not liable for that speech itself. Then you have the case from last term, Moody v. Netchoice, disclaimer, my husband was counsel of record, that again, they punted also, by the way, they punted those other two cases, the terrorism cases, arguing that the anti-terrorism statute

didn't apply. And so they never got to the algorithm question. That was Justice Kagan famously saying, we are not the nine foremost experts on the internet. Yeah. So fast forward to this term, you have Moody versus Netchoice, where they say that the content moderation and arguably the algorithm is their speech. It's the platform's speech. And so they have a First Amendment right to control that. And so the question we are left with is, OK,

if the algorithm is their speech, how can they also be immunized from the content moderation choices that they make under Section 230? Two cases coming out on this, one in the Ninth Circuit and one in the Third Circuit. In the Ninth Circuit case, there were actually tort claims, so misrepresentation and product liability theories. The Ninth Circuit split the baby. They said, look, on the product liability, you're just trying to work around, you know,

Section 230 immunity by saying that like, well, it's not the content, it's the product that shows us the content. And they nod-dogged that one. But on the misrepresentation, this was an app called Yolo. It's actually an extension to Snapchat. And YOLO became incredibly popular with young people and promised that they would have the extension itself would have a way to prevent bullying and harassment and de-anonymize people if they engaged in that behavior.

They didn't do that. There's evidence that in fact, they never intended to do that. And so the Ninth Circuit is allowing their misrepresentation claim to move forward because it's about the functioning of the product itself, if you will. So that's pretty interesting.

Number two was the Third Circuit on the TikTok blackout challenge. And David, this is a tragic case and one that you've, I know, been digging into. So I'll let you introduce this one. Yeah, so this is a rough case. So this involves a 10-year-old who was on TikTok

and saw on the For You page. Now let's just pause for a moment on the For You page. Now let's just pause for a moment on the For You page. So this is where TikTok's algorithm generates content that suggests new videos or suggests additional videos. What's really important in the facts of this case is that the allegation, now remember, this is an appellate decision in response to a motion to dismiss.

And so when I'm giving you the facts, these are the facts as alleged. There's not been a trial here. These are the facts as alleged. But under the facts as alleged, Nyla receives the video suggestion but had never sought out a blackout challenge video, had not searched for a Blackout Challenge video. And so what the algorithm did is it suggested to her the Blackout Challenge video. She watches the video, attempts it,

and then it's just beyond horrible, hangs herself. There was about an 18-month span, Sarah, where 15 children under 12 hung themselves and killed themselves accidentally in the blackout challenge in one 18-month span. Just horrific. And so TikTok is sued. And you might think under Section 230 that TikTok is absolutely positively in the clear. I mean, this is suing TikTok for third-party content. Section mean, this is suing TikTok for third party content,

section 230, you know, the first section of, part of section 230 says that no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. So what that means in plain English is, content provider. So what that means in plain English is if I'm being sued for posting content provided by somebody else, I've got a get out of jail card. In other words, posting third-party content does not make me responsible for third-party content. Also, the next section of 230 says that,

no provider or user of interactive computer service shall be held liable on account of any action voluntarily taken in good faith to restrict access or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not

such material is constitutionally protected. So what this does is taken together, it says, if I publish third-party content, the act of publishing third-party content does not make me liable for that content. Then the other part says, I absolutely can moderate content, restrict content that I view to be dangerous or lascivious or lewd in some way. And I have that same right, that doesn't vitiate my immunity from liability. So I can publish the content without being liable

and I can moderate the content without being liable. But the interesting issue in this case was not really so much about TikTok hosting the content. It was about TikTok suggesting the content. And so what the Third Circuit does after the Moody case is it says, wait a minute, hold on. What we learned from Moody was that the suggesting of content, that algorithmic suggestion is its own speech.

So that is TikTok speaking. And the Third Circuit, and this was a one Obama-just judge and two Trump judges. And this was a unanimous panel with a concurrence and with a dissent in part and concurrence in part. But all three agreed on the ultimate outcome. And the quote was, they quoted Justice Kagan and Moody that says, expressive activity includes presenting

a curated compilation of speech originally created by others. So that's TikTok's independent expression. And so the ultimate holding here was that, no, you cannot hold TikTok liable for merely publishing the blackout challenge content. You can't do that. You can't hold them liable if Naila, the 10-year-old,

searched for the blackout challenge content and saw it. But what they can be potentially liable for, because again, this is at the motion to dismiss page, it's not deciding the case, they can be potentially liable for, because again, this is at the motion to dismiss page, it's not deciding the case, they can be potentially liable for their own action of suggesting this content to the child. And you know, Sarah, how I like to use offline examples to make points about online speech. I would put it like this.

Imagine you're a child and an adult comes up to you and says, hi, based on what I know about you, I think you'd really find this video interesting and shows the child. Imagine they're sitting at a park bench or sitting at a school desk or wherever. An adult comes up and says, here, watch this video. And if the video was something that was extraordinarily dangerous or troubling for children, And if the video was something that was extraordinarily dangerous

or troubling for children, we would hold that adult responsible in that circumstance. We would say, okay, I know you're showing the child another person's video, but this is you acting here. You walked up to this kid, you showed them the video, that's on you. And so I think the Third circuit made the right call here because this is not getting onto TikTok for hosting the content.

It's not getting onto TikTok for moderating the content. It's getting onto TikTok for doing its own thing, which was using its algorithm, which is scarily good. You know, the TikTok algorithm has a reputation for being scarily good. It's using that, its own platform to suggest content that was extraordinarily dangerous for this person. And so it doesn't decide liability, you know, that doesn't mean that TikTok is liable for wrongful death.

There's a lot of questions about whether the wrongful death statute would apply here. And just like in the Twitter case, there was questions about aiding and abetting terrorist activity. Did that apply? But in my view, Sarah, if a social media company has a First Amendment right, which it does, then it also carries the same responsibilities with it in the exercise of its own speech

rights as any other entity or person has when they exercise their own speech rights. So I felt like that this was the right decision under the facts as alleged. But you're about to tell me I'm totally wrong and destroy my New York Times newsletter before it's even put out. No, because I think we're into the more interesting and harder parts of 230. I found the comedy carrier conversations to be not that interesting, all things considered.

But sort of what is an algorithm under the law is really interesting to me. OK, so you have, and I guess for me, why the majority in the Third Circuit opinion gets this wrong is they think the distinction between first and third party speech is somehow determinative of 230 protection. That to me doesn't make a lot of sense

and I don't think it's right. Judge Matey, friend of the pod, Judge Matey, in his concurring in part, dissenting in part is making a slightly different point which is focused on the algorithm itself, which again, I just find to be a more interesting question. So 230- And by the way, his concurrence, I highly recommend reading his concurrence.

It's great, it's smart, yada yada. You know, we love you, Judge Matey. So 230 says, you don't treat them as the publisher of any information provided by another information content provider. So Moody held that social media websites have full First Amendment protection when they publish curated feeds of speech created by those other content providers.

But that doesn't make their third party speech their own. So the First Amendment protects publishing, disseminating, transmitting speech. That's what Moody's talking about. So social media websites choosing how to display speech, that's the algorithm, is expressive activity protected by the First Amendment. But that doesn't make the speech that they're disseminating their speech. And that's the distinction that 230 is making is like, look, if you're disseminating your speech, 230 doesn't apply. If you're disseminating someone else's speech, it does.

And so, look, it is just factual that you can have both First Amendment protected activity and 230 immunity for the same transaction, if you will. So you can take down speech that you don't want to be associated with. That is First Amendment protected activity. And it's immunized by Section 230. Okay, so that's the part that I think is just factually the case and a whole lot of people,

I see sort of out there dunking that like, well, if it's First Amendment protected, it also means that it can't be 230 protected. Oh, right, of course it can be. That's right, that's like literally the whole thing we're doing here, or else you wouldn't need 230 protection. Okay, what Mayte's getting at is slightly different, right? That the algorithm that you're not trying to sue them for the underlying content, you're suing them for the algorithm.

Right. And I think this becomes a really hard thing, like philosophically, if you will, like, what is an algorithm? Because in this case, for instance, David, you can't point to something that, you can't make your case without talking about the underlying content. And that's where I think there's a problem versus the reason that I brought up that 9th Circuit case. Section 230 obviously doesn't apply to the representations you made

about what your product does. You said that it wouldn't allow bullying. I don't have to point to really any of the content as long as your product didn't do what it said it did. And so section 230 isn't gonna protect what your product does or what you told people your product does. There's a world in which I can see arguing

that the algorithm, their choice to show you stuff is closer to that line. But I guess overall, it's really hard to distinguish between distributing that third party content, which is 230 protected, and the algorithm, quote unquote, this is like this magic incantation that would get you out of 230 protection. The best argument that I think you just can't make right now

because it's sort of foreclosed by precedent is that 230 actually only is protection against the claims of defamation. And if you're bringing different claims, 230 doesn't apply to that. I think you end up with a pleading around defamation problem on some things. But on wrongful death, for instance, or these other torts, maybe 230 was never designed to deal with those. It's only designed to deal with defamation. But I think the algorithm line of thinking is difficult. So let me take a stab at standing up

for Mady's concurrence here. Because I think Mady's concurrence is a really good exercise in understanding what is 230. Yeah. Why is it written the way that it is written and what was it supposed to accomplish and how do the words accomplish that purpose and how is the algorithm different? And here's the history lesson, very brief history lesson. At the beginning of the internet, the internet really was basically channeled through a few

companies. Like you access the internet by getting a CD from CompuServe, Prodigy, or AOL. You would go log on to AOL or CompuServe or Prodigy, and they had all of these things that are adjacent to what we see now. They had chat rooms, comment boards, all of this stuff. And so the question was, what is the responsibility? What responsibility do these internet service providers

have for that content? It's all user generated, it's not AOL content, it's not CompuServe. And so in 1991, a guy sued, I believe CompuServe, because he says, there was content posted that was defamatory towards me on a CompuServe message board, chat room, whatever. And the federal court says, no, CompuServe is not liable. This is a trial court. CompuServe is not liable because they just allow anything up.

It's obvious that this is only the speech of the person who made the post. CompuServe is not in control. Well, so the precedent was established. It was just a trial court precedent, but it was the first one that said, hey, look, if you're just hosting third party speech, you're fine. It's not your speech. It's their speech. But Sarah, there's a problem. As we know, if you have no restrictions on content,

the internet moves to gross and depraved at the speed of light. And so all of a sudden you begin to have awful content in these chat rooms and these message boards. So along comes Prodigy and Prodigy says, aha, it's an open sewer over there, say a CompuServe, but over here we moderate. And so it's much more family friendly.

You don't have to be worried that, you know, you're gonna have some sort of terrifying image or something that's just horrible and grotesque that you're gonna see as a consequence of using our system, we moderate. So in 1995, a New York State trial court says, after someone sues again, because they said there was unlawful content on Prodigy,

trial court says, wait a minute, because you moderate, you're now essentially like the co-speaker. This is you speaking as well. You can be liable for content that is posted on your platform. And people immediately saw this as a massive problem. Because what happened is, if you took these two cases together, it meant that you had an all or nothing. You either let everything on the platform

turning it into raw sewage, or you let only some things, but you're jointly liable for what you post, which would mean you're not posting third-party content. So Congress acted. Wait, Sarah, that's a weird thing to say. Congress acted. What?

It was the 90s, David. It was a wild time. It was the 90s, that's right. It was a wild time when Congress would legislate. And so they passed 230. And 230 is designed to deal with the all or nothing problem. It says, we're getting you out of the all or nothing world. Under this world, you can host third party content

and you can moderate third party content and you're not liable for that content and moderating doesn't make you liable. And I don't think people understand, Section 230 was the rocket fuel of the modern internet. If you post an angry comment about us in the advisory opinions page at the dispatch, you can thank section 230. That's what gives you, if you are upset at a restaurant

you just went to, you can thank section 230 for being able to vent. You know, you name it. You want to state your argument that Rogue One is the best Star Wars movie, perhaps even better than Empire Strikes Back. that Rogue One is the best Star Wars movie, perhaps even better than Empire Strikes Back, you can make that argument. And so Section 230 put the internet on rocket fuel, and here's the twist though, Sarah. If you're going back to Section 230 days,

it was designed to deal with the all or nothing problem. The algorithm came in later, the algorithm as we currently experience them came in much later. And this is, these are the proprietary human created curation mechanisms that where the internet service provider provides its own suggestions of third party content. So this is its own suggestions. And now why is this fundamentally different? Now imagine, Sarah, that we had an algorithm,

let's say Elon Musk got mad at one of us, and he decided that, you know what, I'm gonna just make their lives miserable. And it combs through all of the Twitter posts that are about us, and it privileges, just bear with me if you could have an AI driven algorithm could do this, that it pulls out only the defamatory content about us and puts that on the top of the feed.

Now, would you say that Twitter's own actions are now participating in the defamatory content? I would say yeah. And that's really kind of what we're dealing with here is when the curation becomes as powerful it has become, you've got sort of a whole nother category of content that is different from the fundamental underlying problem that section 230 was designed to deal with.

This is something else. This is when the social media company speaks on its own and prioritizes other people's content according to its priorities. I think that's clearly constitutionally protected. It's also not clear to me that it's encompassed within Section 230, which was designed to deal with a different issue. So that's sort of where I am on it. I think it's, but I totally acknowledge that you're right, Sarah. This gets difficult to sort, which is why I think the majority opinion which said,

hey, no liability for hosting the video. That's pure section 230. No liability if the person searches for the video. But if there has been no searching for the video and we're choosing to put it right in front of your eyeballs, that to me becomes like the adult walking up to a kid on a park bench and saying, here, I know you, little Sarah, and I know you'll really like this content, watch this. But why isn't it more similar to the New York Times choosing to publish

you as a columnist and not me as a columnist, when the person has to subscribe to the New York Times to get the content, you have to put the app on your phone or whatever else, you have to go to them and then they're choosing what you're gonna see, David French or Sarah Isger. They've chosen David French. Can I sue them for my eyeballs bleeding? You can absolutely sue them if I defame you.

If it's an op-ed published by the New York Times. I mean, that's a totally different deal. But, you know, if for example, let's suppose they- But I mean, that's the better example deal. But, you know, if, for example, let's suppose they- But I mean, that's the better example than someone walking up on a park bench. You've still sought out the publication, if you will. But that, and there are facts of this case, they're saying, no, she didn't seek out the publication.

Yeah, she did. She sought out the publication. She didn't seek out what op-ed they showed her, but she went onto TikTok and she was looking at TikTok videos, just like I go onto the New York Times website and scroll around. The New York Times chooses then what to say like,

hey, you might also like this article. Yeah, absolutely. True, true. It's a little difficult because in that circumstance, the New York Times isn't immunized in any way, shape or form. So, but the question here is, so it's a little bit of an apples and oranges situation because the times- I know, I'm just trying to push back

on your park bench example. Yeah. She did voluntarily enter their platform, their publication. Maybe the word publication is unhelpful here because we're talking about the act of publishing things, but or distributing things. But someone didn't walk up to her on a park bench.

Well, let's modify this. I'm on the park bench and I am chatting with people in the park. And an adult walks up and says, ah, I see you're chatting with people in the park. Here, watch this. I'm not so sure that that changes the dynamic that much. I just don't think that analogy is very apt. But look, here's what I think is interesting

about it. This is a, if they can prove this at trial, we needed a case to test not the algorithm prioritizing things that you like, basically, but rather starting from scratch, which is your park bench example, David, or it's my New York Times saying you might also like this article example, however you want to think about the analogy offline. But it's you never searched for this, but we think you might like it. And what that means vis-a-vis Section 230. That's the interesting thing about this case. No question about that. I still think that the that Ninth Circuit case on the misrepresentation thing is interesting because I think there's other avenues like that and I've said all along for instance I think the addiction avenue is like that because

you never have to point to specific content because everyone's content is different it's that the algorithm itself is particularly and uniquely addictive they know it's addictive it's how they are doing all of this. It's why they're doing all of this. In that sense, you're never relying on third party content the way that this case doesn't exist without that third party content. Their choice to show you third party content that you

didn't otherwise search for is the question. But it is still about that third party content and the dangerousness of that third party content. That's pretty heart of Section 230 immunity in some ways. My addictiveness argument doesn't rely on what that third party content is at all. It doesn't matter if it's cat videos. You can be just as addicted to cat videos as you can to any other type of video, dangerous or not. They're not inherently something about that third party content that's bad. But David, the punchline for all of this is that we're going to be living in a world of

defining Section 230 for a long time to come. Oh, for sure. For sure. Let's finish out our First Amendment cases and then we'll leave Second Amendment and Admin Law for the next episode. So the Second Circuit sent the Sarah Palin defamation case back down once again. This is going to be the third time around. So the first one, the case gets dismissed before it goes to trial. And the Second Circuit says, nope, she can proceed to trial. The second time around, it goes to trial. If you remember this, while the

jury is deliberating, Judge Rakoff, the trial judge, says that he has decided under Rule 50 that basically no reasonable trier of fact could rule for Sarah Palin. Therefore, as a matter of law, he's going, regardless of what the jury does, to decide the case for the New York Times. The jury's out deliberating while he does this. They get push notifications on their phone saying that the judge has already decided the case. He holds that this is harmless error and the jury had also found for the New York Times. The Second Circuit in this instance is saying no to that decision that it can't be harmless error when the judge says the case is legally insufficient. But also, a number of his evidentiary rulings they said

were in fact so wrong that it warranted a new trial. Times where he said that she couldn't introduce evidence of previous articles that potentially the editor in this case had read to show his knowledge of the truth around the Gabby Giffords shooting and the motives of the shooter in that case. Evidence about the editor's brother who is a U.S. Senator, who's a Democrat, who was running for reelection. He had worked on that reelection campaign the US Senator who's a Democrat who was running for reelection. He had worked on that reelection campaign during this whole time that the Gabby Gifford's shooting was going on. For all those reasons, evidentiary,

the jury verdict problems, etc. They sent this back down. This is interesting for many reasons about defamation, David, and actual malice, and defamatory malice, and all of these things. But also because for those itching to get rid of Eileen Cannon in that Trump classified documents case, they are not replacing Judge Rakoff. So even though he wouldn't let her go to trial the first time, screwed up the trial the second time, the Second Circuit is like, no, we're not replacing Judge Rakoff. Absolutely not.

Just because you make bad, including like bonkers bad, many, many bad decisions. In this case, he dismisses the case, saying she doesn't even have a case to move forward with. That's a pretty big thing to get wrong. This time, he gets multiple evidentiary rulings. And as they were pointing out, pretty harsh terms, frankly, for a judicial opinion, David.

Judge Rakoff, time and again, for his Rule 50 determination, basically used his own assessment of the editor's credibility, which he found him credible on the stand. The number one thing you can't do in a Rule 50 motion is judge the credibility of various evidence or witnesses. That's literally the job of the jury and not the judge. And so they take him to task for doing that. And regardless, David, they're not even entertaining the possibility of removing Judge Rakoff from this case. So I'm just setting the table for the future.

When the 11th circuit doesn't remove Judge Eileen Cannon and everyone, you know, talks about how corrupt the system is, no, it's really hard to move a judge, even when they're making bonkers towns decisions that look biased toward one side or the other. I have always been stumped by the argument that said, Eileen Cannon's bad decisions mean she's going to be removed from the Trump case.

That's always, I have never, you know, I practiced for 21 years before I became a journalist full-time, never once saw a judge removed from never once saw a trial judge removed from a case for making bad decisions on pretrial motions or making bad decisions in trial. And the reason is really pretty clear. You're removed when you do something that is unfair or corrupt, not make a mistake on the law.

And those are not the same thing. And you might say, well, the mistake is so big that has to be- It's proof of her corruption or something. Proof of corruption, no. You've got to bring a little bit more to the table than they made a decision in response to the arguments brought before the court and they agreed with one side and not the other. That's, you got to do better than That's, you gotta do better than that.

You gotta do better than that. So, you know, my own theory on Elaine Cannon is that if Trump loses, she's suddenly gonna become a better judge. There will be the incentive structure around her judicial career will begin to change. But the reality here is you're just not getting rid of a trial judge because they made legal mistakes.

You're getting rid of a trial judge when there's evidence of appearance of impropriety. Again, making a mistake is not an appearance of impropriety, bias, et cetera. Yeah, and that's just not happening on garden variety mistakes and pretrial motions or in motions in trial. Also interesting in this, and we've talked about defamation in the past, public figure defamation,

you have to prove actual malice, which just means you have to prove that the person knew or had reckless disregard for the truth before they published it. And it's always been a really weird term to me because I don't know, actual malice, it's a weird phrase. And what's so fun in this opinion to me is that they talk about how, yes,

Palin does have the burden of proving actual malice, but she doesn't have to prove defamatory malice. And I was like, wait, what? I thought those were the, huh? Same thing? And I had to go back in my little tort law mind to remember the difference between actual malice and defamatory malice. So actual malice is the standard, as I said,

by which you have to prove that the person knew or basically had reckless disregard for the truth when they published this thing that defamed you. Defamatory malice is that they meant to defame you as in they actually had a bad purpose, the purpose of hurting you. It's actually the only one where malice is being correctly used in my view. Defamatory malice is about malice. Actual malice is just actual knowledge would be a better phrase for that one.

So Palin has to prove actual knowledge, but she doesn't have to prove defamatory malice in this next trial. There's been some conversation over whether this will now settle because basically every single ruling except like one, maybe two went for Palin in this appellate decision, which means the

New York Times is going to have a much steeper climb in defending themselves at another trial. A lot more evidence that Palin can bring in, a lot more sort of credibility leanings. The jury asked a question at one point of how can, you know, if we find that on cross examination Bennett said something, the editor said something, unhelpful, can we base our verdict on that? And the judge was kind of like, no. The appellate side was like, yes, they can. They absolutely can.

Quit telling them all, you know, every ruling that you made in favor of the New York Times. So will the New York Times settle this? No, no, they won't. Because at this point, A, I still think the New York Times settle this? Uh, no. No, they won't. Because at this point, A, I still think the New York Times will win. And it goes to this, like, point I've been making between Eileen Cannon's classified documents case

down in Florida and having Judge Chukin up in D.C., everyone was like, oh, the D.C. case is so much better because you've got a judge that likes you. No, because this is what happens. You get overturned on appeal. If Trump loses in Eileen Cannon's courtroom, there ain't no appealing. He got every ruling his way. So in some ways, if you're a prosecutor who's really confident in your case, you should want an antagonistic judge because you're going to get

your verdict and that's going to be that. Similarly, for the New York Times, they would actually have saved a lot of money if they had just allowed all of the evidence, all the bad stuff to come in at the trial because they still think they would win. And then there wouldn't be these appeals going up and down and up and down. But I think the New York Times has such a interest in litigating defamation cases like this, especially ones they think they'll win. I think we're gonna keep doing this rodeo for a while. I think both sides wanna see this through. I have zero insight as to what the New York Times

wants to do here. But I will say on your point about a trial judge that is potentially hostile to you or been made to be hostile by a court of appeals. In other words, the court of appeals has sort of said you've got to allow A, B, C, D, E, and F, and G in or whatever and you win anyway. You're in a golden, I agree you're in a golden position Sarah on appeal. The last case, the last trial that I had, the judge, very good judge, and to the extent that he, very good judge, but would consistently rule against us on the motions in limine.

So in other words, our evidentiary motions really limited some of the evidence we're able to present. We presented what we could and we won, thankfully. And then I just felt so good about an appeal after that, because had I won some of those motions in Limmaday, I might have been a little bit nervous on the appeal. I felt so good about the appeal that it was not surprising at all to me that the case then settled after the jury verdict

because the judge's rulings, which at the time had stacked the deck against us at trial, actually ended up stacking the deck against the defendant on the appeal. It was very interesting the way that dynamic works, but you're exactly right that it is more complicated than simply if the judge is ruling against you at the trial court, then that's invariably and always

going to be bad for you. There are ways in which perversely, oddly enough, it can redound to your benefit. All right, last case on our First Amendment section here. So the Ninth Circuit ruled against the Oregon Bar Association on a First Amendment case. A guy sued claiming that the Oregon Bar Association was violating his associational rights, his First Amendment rights, because they were publishing basically anti-Trump op-eds in their bulletin newsletter,

and your dues go to that stuff. The district court had said no, because talking about the values of law or whatever was germane. The Ninth Circuit said no, the things you're talking about here, even if we use our biggest imagination on what's germane to the practice of law,

talking about Donald Trump is not one of them. But they held that because of sovereign immunity, because the State Bar Association is an arm of the state, you couldn't get damages for that, but you could get perspective relief. And it's going to be of such cold comfort, because the perspective relief is that from now on when the Oregon Bar Association Publishes their thoughts on Donald Trump they have to put this is according to the Six leaders of the Oregon Bar Association Instead of just making it appear like it might be on behalf of all of the members of the Oregon Bar Association

So glad that we used all of our resources on that. I mean, David, you know how I feel about these state bars. I think they are a racket. I think it's absurd. I think once you pass the bar, the only thing that we should be paying dues into is disciplinary stuff. And frankly, I think a lot more lawyers need to be disciplined.

So I'd be willing to pay higher dues in order to have more resources for disciplining lawyers who hurt their clients through negligence, through stupidity, anything. Not to mention the ones that are hurting their clients or misrepresenting as officers of the court intentionally. None of it's getting disciplined. But the idea that they're spending money on a newsletter where they can have their opinions about Donald Trump sent out, like, what? Or various, frankly, like community projects. No, your job is to license lawyers and to keep those lawyers good representatives of the practice of law so that whenever you hire a lawyer, it's fine. Because frankly, we need people to be able

to hire lawyers more cheaply, good lawyers more cheaply, and if bar dues are affecting that, I'm against it. But David, this decision, while a victory against the Bar Association, ain't gonna do much. No, no, not gonna do much. I mean, the Bar Association just messed up. I think pretty clearly they messed up here, but the fix, yeah, very small real world practical result here. They had already refunded his per capita share

of publishing of the bulletin, which I'm sure was several cents on the dollar. All right, David, so next time we will talk about the Massachusetts Supreme Court decision on switchblades, the Eighth Circuit decision on whether Missouri can say no to enforcing federal gun laws. We've got a couple of Fifth Circuit decisions, drug users in possession of guns, illegal aliens in possession of guns. We've got a lot of Second Amendment stuff teed up here. aliens in possession of guns. We got a lot of Second Amendment stuff teed up here. And then, what happens in a post-Loper Bright world with all of those cases that relied on Chevron

to decide them? This and more on the next Advisory Opinions, where I will still have a broken toe. Ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh,