Advisory Opinions - Getting Blocked on Social Media

Episode Date: November 2, 2023

The Supreme Court deliberates whether state actors should be allowed to block private users on social media and Sarah and David have thoughts. Plus: -The first amendment rights of government employees -Clarence Thomas has a question -Trump's new attorneys (guess who's not in the running) -The CCP is already here -Worst Halloween candy? Show Notes: -Garnier v. O'Connor Learn more about your ad choices. Visit megaphone.fm/adchoices

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Certain conditions apply. Details at phys.ca. You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger. That's David French. And fun episode today, we have the double-barreled cases on can elected officials block people from their social media channels. elected officials block people from their social media channels. It's not about Donald Trump, but it could be. This is your two school board officials out in California, your city manager in Michigan. They all were sick of being criticized on their social media pages,

and they blocked some constituents, some residents. Can they do it? Did it implicate the First Amendment? We'll find out next. Headline for The New York Times, Donald Trump, Donald Trump's allies at least, have feelings about what kind of lawyers he should hire in his next administration. They're feeling their oaths, they're liking the polling, and they don't like their former lawyers, which includes me, of course, which is fine. And last up, comments on our conversation about TikTok last time.

We're going to fight back. We're going to clear some things up. It's probably our fault. But nevertheless, we have thoughts and feelings to expand upon banning TikTok in the United States. All that and more on Advisory Opinions. Oh, and plus, David and his obsession with York peppermint patties. It's not a kid's candy.

Find out more. Okay, so David, let's start with these Supreme Court oral arguments. Boy, was it long. Boy, did it feel like at the end of the day, this was three and a half hours about something so small. I was going to say like never before has so much been said about so little, but that's not true because like welcome to faculty meetings. But nevertheless, it was close to say like never before has so much been said about so little, but that's not true because like welcome to faculty meetings. But nevertheless, it was close to that.

So we'll start with the facts. We had two cases argued. O'Connell, Ratcliffe, and Zane versus Garnier. These were two school board-y type people who blocked the Garnier's husband and wife team from their social media channels. And as a result, the Ninth Circuit said that was state action. They'd violated the Garnier's constitutional rights, went up to the Supreme Court. Also argued next to that was Linkey versus Breed. This is the city manager of a little town out in Michigan. He blocked a dude who was criticizing him on his Facebook page. Sixth

Circuit said, no problem, not state action. All right. So, David, lot of oral argument on this case. And yeah, there were some factual differences. So in the Ninth Circuit case, those very much appear to be campaign feeds, if you will. They were literally named after their campaigns. The Sixth Circuit case got a little more interesting

because there was so much personal content. It was like dog, dog, kid, dog, dog, kid. Also, if your water's been turned off, Sixth Circuit case got a little more interesting because there was so much personal content. It was like dog, dog, kid, dog, dog, kid. Also, if your water's been turned off, dog, dog, kid. Are you worried about COVID? Dog, dog, kid, kid, kid. Football, dog, kid, football, football. You know, how do you feel about potholes?

Right. I don't know. Overall take here, David, I thought that this really illuminated some of the difference between institutional concerns and non-institutional concerns, because the idea that you're going to have a bright line test here, it's just not going to happen. And so you had several of the justices trying to figure out what would even be workable here and whether this would create too much litigation, all things that are not just the four corners of the law, right? Caring about whether something results in endless litigation across the country for thousands and thousands of sort of small town elected officials is a prime institutionalist concern that I found really

interesting. But I also wanted to walk people through what this case is about and also what it's not about before we dive into discussion. So this case was only about whether it is state action when you are talking on these social media feeds or block someone on these social media feeds. Now, why would that matter? Because you don't just win the case even if it's state action. You would need to find that it's state action. That's all that this case is about. Then you need to say that it actually was a public forum that they created when they did the thing, either the channel or the post. That was a source of confusion here. Then that it wasn't a valid time, place, and manner restriction in that public forum. And then that the elected official wasn't protected by qualified immunity.

So the idea that you're going to win your case, that your First Amendment rights were violated, and that you have an action under 1983, not so much an issue here and maybe an issue ever in any of these like-minded cases. But this was just that first question. Can you even get in the courthouse door, if you will, because this is even state action when you block someone from your at least questionably non-government

social media feed, i.e. this isn't like back in the Twitter blue checkmark days. This isn't officially stamped as some government page. All right. So given that, David, I don't even know where to start with this one. Yeah.

Yeah. It's a mess. And I feel like the justices kind of ditched the one thing that I thought could kind of help clear up the mess, which was they were very down on the Solicitor General's property analysis. And that this was, you know, so the government's argument was, you're talking about like sort of denial of access to property that's not your property. And we talked about this a bit before these cases, Sarah,

where I said, well, what are some offline analogies? Because I like to think of offline analogies to help people understand these cases. And they were things like, you're a guest on a radio show, but you can also press the hang up button, right? So the radio host can hang up, like the Facebook algorithm can already, can go ahead and choke

out your speech as it is if it trips some of their warnings, but you also have access to the hang up button. Or you can be banned from posting on that Facebook page anyway because of problems you've had with Facebook. For example, you can't post on Facebook because of problems you've had elsewhere. So it's imagine you're on a radio program with a host and you also can hang up on guests. If you hang up on the guests, does that mean that you violated their First Amendment rights when you're on a private radio program? I thought that those kinds of analogies would be helpful.

And you know what, Sarah, as helpful as I thought those kinds of analogies would be, nine other people did not find them so helpful, which I think is really unfortunate because if you're not sort of, if you're not doing an analysis that is sort of rooted in where you are when you're doing what you're doing, you see the struggles that we saw, which is what is the test? Well, they gave two offline examples, if you will, that were bounced around during both of the oral arguments. One is the hotel ballroom example. So, right, the hotel owns the ballroom. Right. You rent out the ball arguments. One is the hotel ballroom example. So, right, the hotel owns the ballroom. Right.

You rent out the ballroom. Yeah. You rent it out to have the town, the city council meeting, because, you know, the city council, the government building flooded or whatever. That clearly then is state action. You can't exclude someone from that,

even though the hotel owns the ballroom. Whereas if you rented it out for your daughter's wedding and someone came up to you, um, you know, and asked you about, you know, why their water would be turned off, presumably you could still exclude people from your daughter's wedding that was at the hotel ballroom. In addition, why this analogy kind of worked is that, uh, if at your daughter's wedding or the city council meeting, people started hurling chairs and breaking windows or whatever else, the hotel could probably shut the whole thing down

and kick all of you out. Yes, right. You rented it from them. So they are still the owners of the property, similar to how Twitter at some point, if you're throwing chairs, so to speak, can simply ban you from their hotel ballroom. The other example though was,

you know, according to some of these tests and we'll dive into some of the tests that were suggested by, everyone had their own test, by the way. Every single person who took that podium was like, how about my test? But you know, one version of this test was something to the effect of, well, look,

you're always working and it doesn't matter if it's, you know, midnight, if you're reading briefs, dear justice, you're working at that point. I believe it was Justice Alito that that was directed to. And so yeah, it's state action when you're reading briefs, even if it's midnight in your own home. And then you come back to this grocery store example. Okay, you go to the grocery store, you're in the produce section, and you don't want to talk to anyone. But people keep coming up and saying, you're doing a great job as city manager. I really loved this thing that you did. And so you're like, Oh, thank you. Thank you. And you're talking to those people. And then someone comes up and starts berating you about X, Y, and Z. And you're like, No, I'm not going to talk to you. And you keep going. Like, did you violate their first amendment rights? Cause you talked

to some of the people who liked you, but you just don't want to talk to the people who don't like you at the grocery store. And then we get into like the oral argument. This is a good example of why the oral argument was frustrating to listen to. Cause at one point they're talking about, well, if your ice cream's melting, then you can leave. I was like, nope, nope. We've lost the thread here. Yeah, right. Right. And I didn't find either one of those offline examples

all that helpful, both because they were pretty... No, because you're still back to like, okay, but then what is the social media feed? Are we now dealing with it at the channel level that you created a channel where you sometimes talk about work? Or is it individual posts that we're going to deal with? Which one are we even,

what level of generality are we at when we're talking about social media? We couldn't even decide that over three hours, three plus hours of oral argument. Yeah, I mean, because in the hotel ballroom, yes, in extreme circumstances, the hotel can shut you down. But what's different between a hotel ballroom

and say Twitter's terms of service, which when these cases arose, I was more familiar with because they were also linked to the Trump case, is that when you release out a hotel ballroom, usually what the hotel doesn't tell you is, we can end this at any time for any reason and everything you do in the hotel ballroom is also ours.

So we have a right to record everything that happens in there and to use it for our purposes. In which case you wouldn't say, really, truly, it's my hotel ballroom, right? It's just sort of, I'm in a room that I'm allowed to be in for a while that I don't actually control. And so that doesn't really fit.

And then the grocery store analogy doesn't fit because if I'm walking through the grocery store, I'm not also shouting out news of the day. Like- Walking through the produce and being like, love this press release, check it out. Yeah, or here's a picture of my kids. I don't know how you walk through the grocery store, David.

So I don't know how that all works, but I don't think either one of those analogies was particularly helpful compared to some others you could think of and compared to some other property type analyses. But again, this sort of showed how difficult this was, especially when... But David, was it that... I think maybe I had a bit of a problem here because I don't understand the argument that you can't, that by blocking people,

or rather that you can't block people, that it's state action on these channels. I feel, I see the downsides of, you know, for instance, being able to block all the non-white people on your channel. Not great,

but isn't that what political accountability is for? If you block all the non-white people on your channel. Not great, but isn't that what political accountability is for? If you block all the non-white people, I'd hope that you don't win re-election. And if you do, well, that's what political accountability is for, I guess. But this idea, David, like we don't have any problem with saying that you can host a campaign rally and exclude everyone who criticizes you from the campaign rally, or that you can have a kitchen cabinet of your best friends and only talk to them before you make some decision. Now, there's public meeting laws, and I get all of that. But take that out for a second. Just in general, you can talk to your friends and family about whatever you want. It's not state action. If you tell them what you did that day, or tell them that you disagree with

something that the other school board members did, or whatever that may be. And so this idea that you can't exclude people from a channel or a ballroom or whatever analogy you want, seems crazy. And the alternative seems even crazier. That if we say that that is state action, that when you sit on your Facebook page and talk about parts of your job, that that's state action, the consequences of that are so extreme. They really are. That first of all, it'll bleed over very much into real life. This isn't one of those things where we're only dealing with the social media channels and trying to find analogies. If you say that's state action, first of all, it means that your boss, whoever that may be, you know, in this case, the city manager's boss is the city council,

or the mayor, or the governor, or whatever else can now dictate what you can say on your social media page. That has First Amendment implications. And we've talked about this, David, that government employees also have First Amendment rights, even if they're in their jobs. This is that Garcetti case about the press conference from the prosecutor and those things. But to transform all of this into government speech that the government both can control and is responsible for, I think that will have offline implications almost more than it will have online implications. Yeah. You know, now I can see a situation where, let's say, you're hosting a city hall meeting on Instagram Live. Yeah, this was brought up as well. You use your personal

feed, but to host a city council meeting. Yeah. I would say for the purpose of hosting the meeting, if you then said, and we're going to solicit comments from white residents only, right? But that's specifically connected to, there's no question that a city council meeting is state action. But it is, I just don't think you're in a position where if you're a public official, that every time you are speaking, no matter where you're speaking on a matter that relates to your job, that all of a sudden in that moment, you are acting in your capacity officially for all purposes as a state actor. That's a real problem.

I mean, as the justices wrestled with, there are really tough limiting principles there. And then you layer on top of it that we're really talking about a platform you don't own. You're talking about a platform that you don't control, that exercises really superior control to you. And then it's content that you might create, but you definitely don't own either. So it's a mess. So let's talk about some of the tests that were bandied about here. Hash Mupan, former classmate of mine, argued on behalf of those school board members that were found to have

violated the first member rights of their constituents. So his test was a duty and authority test. And this you're going to hear basically just versions of duty and authority from the Solicitor General's office who got some argument time in this, and as well as the Sixth Circuit opinion from that other case uses something like a duty and authority test. And there's just a question of the strength of the duty and authority test. But it's something like, are you exercising your authority in your position as an elected official? So for instance, hosting the city council meeting on your private feed.

Or do you have a duty to do the thing that you're doing? And then the relative strength and weakness of that test, though, still created kind of a mess. Because is it then like your official duty? Or is it a custom of duty? Like, you have a duty sort of broadly speaking to communicate with your constituents it's not written anywhere but like of course you have that duty kinda so you're communicating with your constituents anytime you post something work-related or respond in the comments it was the example and this is in the sixth circuit case that gets argued second you know one point the guy takes a break from talking about his dog and i guess the dog died was a really, there was a moment in the oral argument where the advocate was like, RIP to the dog.

Oh, no. There'd been so many questions about the dog, but I guess the dog died. Sorry. RIP dog. So he's talking about how basically, because of COVID, we're not going to turn off anyone's water right now. And then someone gets in the comment section says, what if our water's already been turned off? Are you going to restore that? And so the guy answers that question. But a lot of other questions also get asked, and he doesn't answer those questions. And so on the one hand, he clearly

is communicating with constituents, which is part of his duty, perhaps so on the one hand, he clearly is communicating with constituents, which is part of his duty, perhaps. On the other hand, he's not communicating in every single situation. So is it really part of his duty? Because it's not part of his duty to communicate with every constituent. And so is that closer to the grocery store where someone walks up and is like, hey, I had my water turned off. Are you going to turn it back on because of COVID? The guy's like, yeah, yeah, we'll get to that. Yeah, for sure. And then he keeps walking as other people are like, I have questions. And he's like, my ice cream's melting. I got to go. So that duty and authority test was sort of helpful to one side, I guess, but I don't know that it answers a whole lot of questions.

Okay, then the other side, the lawyers representing the constituents who got blocked, Alon Kadam, who was husband of the pods, co-clerk, who we're also rooting for. I'm rooting for both sides of these cases on a personal level. And Pam Carlin over at Stanford. So their test was something more like, are you doing your job? And or have you established a channel to do parts of your job? And the problem is for any elected official, part of your job is going to be communicating with constituents, which by definition, if you're posting about anything work related on your social media channel, did you just transform your entire channel into state action? Or is it post by post? Does it matter whether it's 95% about your dog and 5% about work? Is there a de minimis standard here? So David, there were all these tests. There was lots of

arm wrestling over the tests. But at the end of the day, I didn't find any of the tests to be particularly dispositive and maybe not even that helpful. Yeah. And, you know, the Ninth Circuit, you know, one thing that I feel thankful for is it doesn't seem like the Ninth Circuit's test, which was essentially, is this action fairly attributable to the government, is going to win the day because that would seem to sweep in almost everything. If the, you know, your grocery store conversation, if you're a member of the government would be fairly attributable to the government. So yeah, I, I didn't find anything to be particularly compelling. I thought, and then part of it is, what has happened is a public official has all of these various channels at their disposal.

So you're going to have the official channel of the state government. So you'll have the state government channel, but it might actually have fewer followers than the campaign site because the campaign site might have drawn more people just because of the contention of the campaign. And let's face it,

official government channels can be pretty boring. And so you think, well, if I wanted to get out the most information about a COVID closure, I'm going to use all the channels available to me. I would bet, you know, on purely Facebook, you know, I have seen on purely private Facebook pages, that's just, I'm John Smith from, you know,

Prairie View, Illinois or whatever. They'll post their press releases. They'll post, you know, their own, their campaign information in addition to dog, dog, cat, meal, sushi, press release. And then does it matter to you whether that's the only place you can find the press release or that it's a link to some other place

where someone could find the press release? Like, does it matter to you that it's a reposting? Yeah, that they shared the link from the government. Yeah. So again, it just starts to get, your head starts to hurt, which is why I'm much more in favor, I was actually much more in favor of sort of the solicitor general suggestion everybody crapped all over because it seemed just really difficult. And it seems to me the duties and authorities, I feel like of the bad options seem to be the better of the bad options.

But then you still have to define duty. Right. You still have to define this de minimis level. If it's 95% cats, you still have to say like, okay, so you're posting 95% about cats and someone's on your feed and all they do is repeatedly comment on your cat post alone you know the 95 and every time you

post in the 95 about cats they say i hate cats cats should be turned into violin strings they never comment on your five percent which is about your work. So you block them. Did you violate their First Amendment rights because they could have commented about the 5% about your work? Or they're blocked from seeing the 5% about your work? That also is a problem. Some of these blocks actually just prevent you from commenting. Some of them prevent you from seeing the entire feed. So, you know, is this about petitioning the government and your First Amendment rights? Or is it about knowing what's going on in your government? And, you know, as was also pointed out here,

look, I mean, there were conversations about disclaimers. What if there's a disclaimer on the top of the page? Does that help anything? At first, it seemed like the answer might be yes. Then everyone kind of settled on no toward the end of the argument. Does it matter that, for instance, when we look at that duty and authority test, in one of the school board member cases, after the lawsuit was filed, they just deleted their, I forget whether it's Twitter or Facebook or whatever it was, they deleted their social media feed. Yeah.

Well, they weren't reprimanded by anyone because they didn't have to have it in the first place. So is that the kind of duty and authority we're looking at? That like, if you had to have a social media feed, well, then it would be part of your duty. But if you can just not have one, then it's clearly not part of your duty. Maybe. Don't have to go to the grocery store.

Don't have to go. Can have the groceries delivered. Yep. What about the fact that on these so-called campaign social media feeds, it said, if you have any questions, reach out to me at my official email address, not my campaign email address or my personal email address. Is that more like running into someone at the, you you know the mayor at the grocery store and him saying look call my office tomorrow or is it more like saying no no this is an official channel that i created for constituents to talk about school board stuff because unlike in the sixth circuit michigan city manager case these were almost all about work there was very little dog kid football posting on that. So does the quality

of the channel that's been created matter? Again, I'm just throwing this all out there because over the three and a half hours that I listened to, there were no answers to any of these questions. No, no, that was, that was what was so fascinating about listening to the argument. At the end of it, I just didn't, I had no good sense of where this was going to turn out. I had no good sense of how the test was going to be applied, what the test was going to be. And, you know, perhaps the justices even now, I mean, they may sort of have some agreement on who wins and who loses. That's exactly what I was going to say. There's a lot of,

I felt some agreement on who wins and who loses, but not on why or what the test is. Right. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day

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Okay, so let's talk about who wins and who loses. We'll see if we sort of agree on this because it felt at moments that it oddly lined up somewhat along that ideological axis for no reason that I could really come up with theoretically. So Kagan was sort of the leader of the, you can't block people. Right.

I don't know why you can't block people, but you can't. Right. Feels bad, man. Feels bad. And then Alito Thomas Gorsuch, you can block people. Same thing. I'm not totally sure why you can, but you definitely can. And then certainly for Justices Kavanaugh and Barrett, I felt like you can block people, but it's really for these more institutional concerns. You know, it's not workable.

Elected officials won't know what they can and can't do. It will chill speech, for instance. It will create litigation across the country that may be totally pointless, especially because of that qualified immunity bar. Just public officials will just all get off social media, which will actually just limit the public's ability to know what's going on without actually helping anything.

The chief also seemed to believe that you could block people. He spoke a little bit less than some of the others. I would still put him in that institutional concern camp. He was trying to discern what tests even mean, same as me. So that's, it oddly felt almost 6-3-ish. But this would be a case that if it comes out 6-3,

I don't think anyone's going to say that's for political reasons. Yeah, I had the similar feeling. I mean, it leans toward, in my view, it leans towards the public officials. But again, don't know under which test. And like you said, Sarah, it just felt like a lean and more based almost on instinct than anything else, where it seemed like the instinct, Elena Kagan instinct was, well, wait a minute.

If you're doing government-y things, you shouldn't be silencing other people. And to Kagan's point, right, this implicates First Amendment rights on each side. Yeah. The elected officials' First Amendment rights and the individual citizens' First Amendment rights. And so Kagan was just basically saying, look, I'm on the scale.

I'm with the citizens. And then the conservatives seem to be much more on the scale of, hey, government officials are still people too, and they should sort of have a zone of people-ness. And that would be on things like personal Facebook pages or Facebook pages that were created for the purpose of their campaign,

which is again, not an official page. And if we start leaking sort of their government officials into more holistically the entire rest of their lives, then we've got a problem. And I just thought of a linkage, Sarah, all these ethics issues. Really? How? Say more. I'm not a Supreme Court justice. I'm just a dude going on vacation. Sort of stop thinking of me as always on,

like always in Supreme Court mode. I am somebody who is needing my own time, who has my own friends, who has my own life, and that you can, you know, sure, I might talk around the fire over with a fine glass of whiskey and a good cigar about Supreme Court jurisprudence just in the abstract, but I'm not in an official capacity at this point.

I've got my private life. So that just occurred to me. I don't know. We're not always on. We're not always on. Yeah. Okay. Yeah. So, I mean, there was another thing sort of hanging above this, which is Donald Trump. We talked about the case involving Donald Trump's Twitter feed that they had wiped off the books because he wasn't president anymore. And Twitter had removed him from his Twitter feed. But Justice Kagan asked to Hosh, what that means President Trump's Twitter account was also personal? Hosh, yeah, I think that was a harder question, Your Honor,

because there was in that case use of government staffer to help him run the page. Kagan, suppose there wasn't. Suppose that, you know, he gave every indication of writing his tweets himself and suppose he had also posted them so there wasn't a staffer involved. Yes, Your Honor, then I think he is engaging in his First Amendment rights under this court's decision in Lane

to talk about the government in his individual capacity. Kagan. But he seems to be doing, you know, a lot of government on his Twitter account. It's like criming. I like it. Government as a verb. Doing a lot of government.

I mean, sometimes he was announcing policies, even when he wasn't. I really don't think a citizen would be able to really understand the Trump presidency, if you will, without any access to all the things that the president said on that account. It was an important part of how he wielded his authority. And to cut a citizen off from that is to cut a citizen off from a part of the way that government works. Hush. So a couple of things about that, Your Honor. The first is President Trump could have done

exactly the same thing from Mar-a-Lago or a campaign rally. If he gave every one of those speeches at his personal residence, it wouldn't somehow convert his residence into government property. And in terms of people being cut off from it, people don't have a right to access

other people's personal property. The blocking here doesn't turn on Kagan Interrupts. I have to say that seems a little bit, you know, to focus on the wrong end of the stick, if you will. I mean, the fact that it was his personal property seems neither here nor there. If really he was doing government on it and wielding his authority on it and announcing policy on it,

it was part of the way government operated. Hush. So here's why I don't think that's quite right your honor imagine he had put on his page a clear disclaimer this is my page and i'm using it in my personal capacity to talk about the government this is not an official page every single word on that twitter account could have been the same he then gets interrupted by justice jackson so um take it out of the context of the city manager, David, and the school board officials and make it Trump.

Are you more concerned when it's the president of the United States? And Trump, it was actually the other direction. Instead of reposting something from the government pages, oftentimes the government pages were reposting from his Twitter account pages. But on the other hand, on the Twitter example, when he blocked people from Twitter, they could no longer look at what he was posting, but only when they were logged in.

Yeah. So for instance, you could log out and see everything he was posting. And so does it matter that the blocking prevents you from commenting on that person's page, but under no real circumstances does it prevent you from seeing what's on that person's page, but under no real circumstances does it prevent you from seeing what's on that person's page,

even if it makes it a little harder. Yeah, so not only does it not prevent you from seeing, it doesn't prevent you from commenting about what he said. So you can take a screenshot of what he said, log on and post to your heart's content about what he just said. So really what the block is, and oh, by the way,

that's the same way with all of these other cases as well, is... Like if they had blocked reporters, for instance, reporters would still be able to get what they were saying, access it, and be able to write their news articles about it. So it's not that it transformed it into a secretive thing. It's that it prevented someone from sort of petitioning the individual, if you will,

using that as a channel to talk to your elected official. Yeah, it's much more like a message board argument or commenting at a specific town hall argument. And so then it really does get into what is the nature, not just of the post, but of the comment section. Because in theory, you can have a meeting and not necessarily have a time period or a sufficient time period for public comment.

You might have a meeting and you could allocate an hour for public comment, two minutes per comment, 30 commenters, but 200 people show up. Were the other 170 blocked? What is happening is not that they're prevented from receiving the information, nor are they prevented from commenting on the information, including in the same social media app that they were blocked on. It's really very specifically being able to participate in one specific conversation underneath that one specific post. Well, and to even mess with your example of, you know, they're only going to take comments from 20 people, but 200 show up. In that example, though, they still have sort of promised

to answer those 20 people's questions. But in the social media context, again, maybe this gets to the duty and authority test problem, they're sort of picking and choosing who to answer regardless, and you can't make them answer your question. You can post it every day for a million days

if you're not blocked, and they're still never going to answer it. So it's really just the right to petition. It's not the right to be answered, to have redress of any kind. It's very weird and specific. All right, so David, you think that the elected officials win in both cases?

I think they win in both cases. I don't know what test, Sarah. I don't know what test, but I think they win. Now, there was this interesting aspect of hovering over this because Clarence Thomas kind of comes in and he just sort of drops a bomb overall about sort of Facebook's power in all of this.

He does this at the very end of the second argument. It's like the very, very end. We're like past 1 p.m. at this point. Yeah. And so he drops the bomb about Facebook's power here. And in that circumstance, you think, oh, he's got a whole nother set of cases on his mind. He says, specifically, his question's probably not relevant in this case.

Looming in the background is the power of Facebook itself to block these accounts. Is there any role for consideration of the fact that Facebook could also influence who's blocked and who's not blocked? Which is both referring to these other cases, but also actually is relevant to this one because it's relevant to sort of, is this a government space at all or not?

And if Facebook has as much or more power over your access to the page than the government official does, then that gets back to my point, Sarah, through the back door. Okay. So I want to talk about three fun moments because when you have an argument that's this long about so little, laughter ensues. So first of all, David, to your point about how nine people didn't like your property analogies or cared about the real world property versions, here's justice, sorry, the chief justice.

I mean, usually we're told in these social media cases that it's not a question of a physical asset. And in what sense is this really private property? It's just the gathering of the protons or whatever they are. And they pop up on his page and they could pop up on somebody else's page. So I don't know if for all of the rest of you who have tech cases this term, Justice Roberts would like to know more about the protons. Second, we had what is my favorite. Pam Carlin is making the point that these school board officials using the word we, not I, but like we we are doing this, we will take that into account,

etc. And that that was clearly her invoking the authority of her position, not her personal page. She says, if you compare this to her campaign website, which is a website, not a Facebook page, there she uses I, here she uses we. And honestly, as Mark Twain said, the only people who should use we in the singular are royalty and people with tapeworms. And you know, I don't think she's either of those. So that was oddly

fun. Royalty and people with tapeworms. I hadn't heard that line before and it's great. That's amazing. And I'm just curious whether Pam sort of already knew that, like just had that in their back pocket. She happens to just know that Twain line or if one of her associates are in her clinic at Stanford found that for her, in which case, you know, steak dinner for that person because that was a delight. Yeah.

All right, and last one, Justice Barrett struggling with these tests. At the beginning of your argument, you referred to unless someone is choosing to use their Facebook account, Twitter account, whatever in their official capacity. And Justice Kagan's questions were getting to some of this. I think it's very difficult when you have an official

who can, in some sense, define his own authority. So I think for a governor or, you know, President Trump, it's a harder call than someone like a police officer who's a subordinate. Or my law clerk could just start posting things and say, this is the official business of the Barrett Chambers, right? And that wouldn't be okay. But, you know, big pause. That wouldn't be okay but you know big pause that wouldn't be okay just emphasizing to her clerks and you have to remember that her clerks are sitting

uh let's see to her left when she's saying this so i wasn't in the room but i'm imagining for that second one she paused looked over to the left left and reemphasized that would not be okay. So, again, it gets to this duty and authority. If you're the president, you sort of have the authority to do whatever. But if you're the police officer, you don't. And if you turn these into state action, you're affecting different people differently. To paraphrase Justice Jackson. So David, I agree with you.

The elected officials win here, but I don't know why. It's vibes. It's vibes, but it will be a treat to open the opinion and see why or see why not. I mean, it's not for sure, but I still think they win,

but I'm going to be very excited. And like I said at the beginning, even if they lose, they don't lose. Because at the very end of this long line of questions, okay, so if they lose, it is state action. Then we decide whether they created a public forum. Then we decide whether it was a valid time, place, and manner restriction. And then we decide whether they, even if they did violate their First Amendment rights, whether there's a 1983 remedy because of qualified immunity, which there are certainly qualified immunity at this point. Yeah. Under every conception of

qualified immunity that currently exists, which we don't like. And by the way, has anyone fixed qualified immunity yet? Have we checked the website? Dot com. Yeah. So remember, you have to first establish that they did violate your rights. Yeah, so remember, you have to first establish that they did violate your rights. So the point is, even if you establish that after this long line, the Supreme Court rules,

then you have all these other tests you have to meet. Then the second question is, was that right clearly established at the time? By virtue of it being a Supreme Court decision, the answer is no. It was not clearly established. Just because I wanted to be sure, I fact-checked

this. I went to has the Supreme Court fixed qualified immunity doctrine yet.com and it says very clearly no. All right, David, New York Times headline, Trump's allies want a new style of lawyer if he returns to power. As a former Trump official lawyer, I already know they don't want me. What? You aren't front of the line on a judicial appointment, Sarah? Also, we went trick-or-treating at Attorney General Bill Barr's house last night, and I'm pretty sure they don't want him. I am pretty sure you are correct. Yeah. So, this was an interesting story in the Times. Can I just add, by the way? Yeah. Sorry. If you're curious about trick-or-treating at the former Attorney General's house,

wow. So, I think we can all judge trick-or-treating houses by the quality of the candy that they're giving. Sure. The size of the candy, although as a parent now, I actually feel very strongly that you should not give the larger size candies because remember on the back end of this, I'm having to like ration the amount of candy being eaten per episode. So if you're giving a whole candy bars, that is not helping the parent um but at the bar household uh mrs bar had in fact prepared entire bags and not the little snack bags sandwich bag sized bags filled with candy for each kid so they didn't get like you didn't have to reach in and pick one candy. They just each got a bag full of candy.

So thank you, but also making my life harder. So much more candy per house. So I just want to read the opening of this piece because this is actually something we've said for a while. It says, close allies of Donald J. Trump are preparing to populate a new administration with says, close allies of Donald J. Trump are preparing to populate a new administration with a more aggressive breed of right-wing lawyer dispensing

with traditional conservatives who they believe stymied his agenda in his first term, also known as Sarah, rejected his election challenges. The allies have been drawing up lists of lawyers they view as ideologically and temperamentally suited to serve in a second Trump administration. Their aim is to reduce the chances that politically appointed lawyers would frustrate a more radical White House agenda as they sometimes did when Mr. Trump was in office by raising objections to its desires for certain harsher immigration policies or for greater personal control over the Justice Department, among others. And it's sort of talking about how people are getting more confident that he's going to win in November. And so they're making plans.

And Russ Vought, a former Trump administration official, who, by the way, Sarah, I actually defended in his confirmation hearing because he was put under on the skillet for his religious beliefs uh if you might remember and i said in national review no religious tests guys no religious tests which is absolutely correct you can and should test people for wild ideology and he should have flunked that one but um here's what russ vaut, the Federalist Society doesn't know what time it is. The Federalist Society doesn't know what time it is. You know, we could reach one of those interesting points, Sarah, where in a second Trump term, where you know how a lot of Democrats looked at George W. Bush and Mitt Romney and John McCain

and others very differently after Trump. You might reach a point where people look at the Federalist Society very differently after Trump term number two. But that phrase, what time it is, if you ever hear that, listener, watch out. Because that is a term of art used in the nationalist right to essentially say the typical conventions of liberal, small-l liberal, classically liberal jurisprudence need to be thrown out because the republic is in a state of near collapse. thrown out because the republic is in a state of near collapse. The liberalisms, again, small L liberalism of the American founding is an impediment to saving the country. Desperate times call for desperate measures. And you know what time it is, Sarah? It is time for desperate measures. And so that is the mindset. And then the other thing, if you're still on Twitter, So that is the mindset.

And then the other thing, if you're still on Twitter, you will notice that there are a lot of lawyers, right-wing lawyers on Twitter, who are really aggressive and pugilistic online and very aggressively against the mainstream of conservative jurisprudence. When you see this, think to yourself, they're auditioning. They're auditioning for this second Trump term. And so I do think what you would see in the second

Trump term is a real fracturing of the conservative legal movement that has thus far not fractured as completely as other elements of conservatism. And so I think in the second Trump term, you would see other parts of conservatism facing the choices, I mean, the legal conservative movement facing the choices that the other parts of the conservative movement faced that they didn't really have to

because Leonard Leo was over there during the Trump administration saying, Federalist Society judges, Federalist Society judges. And so for the Federalist Society, say, the Trump term was mostly good until the end. He was putting those folks out. No more, no more. All right. I have several issues with this story that I'd like to tick through. One, after he said the Federalist Society doesn't know what time it is, Vaught also argued that many elite conservative lawyers

proved too timid when the survival of the nation is at stake. No, no. Bill Barr wasn't too timid. Rod Rosenstein wasn't too timid. That's not your complaint, actually.

Your complaint was that they were too strong in pushing back against the president. So figure out what the complaint actually is, because that wasn't actually your complaint. Second, this is all I suppose in some ways going to be related. There's a quote from someone else saying, I believe a president doesn't need to be so hands off with the DOJ. It's not an independent agency.

And he is the head of the executive branch. A president has every right to direct DOJ to look at items that are his policy priorities and other matters of national importance. Couldn't agree more. Every single statement of that is true. But to the extent you're saying President Trump didn't need to be so hands-off, I'm confused. There's a meeting in the Oval Office that we all know about where Jeff Clark says, appoint me acting attorney general and I'll do all the things you want.

President Trump has given that decision. Now the other lawyers say they're going to quit if he does that. And President Trump picks not having all of these lawyers that supposedly are all too timid, et cetera, quit rather than appointing this acting attorney general who says he'll do everything he wants.

So again, I don't think President Trump was under the impression that he couldn't be more hands-on. He chose to keep these lawyers in place when he had the ability not to do so. Next, President Trump has promised to, quote, appoint a real special prosecutor to go after President Biden and his family. Well, the word real there is doing a lot of work,

because, of course, there is a special counsel investigating Joe Biden, and he was a Trump appointee multiple times over. He was the pay dag, meaning the principal associate deputy attorney general at the beginning of the administration. And then he was appointed again and Senate confirmed as the US attorney for Maryland. That would be Rob Herr, who is the special counsel right now.

Hasn't wrapped up anything, interviewing all sorts of people. So I guess my point is, your beef isn't with the lawyers in a lot of these cases. It's with Trump. And your beef isn't that the lawyers were too timid. It's that they were too strong. And your beef isn't that the lawyers were giving bad legal advice because all those lawyers won a bunch of their cases at the Supreme Court. The problem is that a lot of these quote, America first lawyers lose. So is your problem actually that he was getting correct legal advice

about where the courts were? Do you want him to get legal advice that says, yeah, yeah, do this. Nobody's going to uphold that in the lower courts or the Supreme Court, but do it for fun. Because yeah, no doubt you will be able to find lawyers who will tell your boss that, but then you're going to just lose. So do you want lawyers who are going to be right on the law or tell you what you want to hear about the law? Because that's what you're actually deciding between. Well, Sarah, let me, yes,

everything you said is 100% correct. And if they put lawyers in who are just going to tell Trump what he wants to hear, they're setting this administration up for epic, an epic series of court losses, just a giant court loss after a giant court loss after a giant court loss. But you know what the next step is though? Well, trying to tell Trump that he should ignore the court. That's, that's what I'm, I'm actually worried about that in a

weird way more than I am Trump just sort of ditching the whole conservative legal movement. Because you could have a president for four years, appoint a specific number of district court and appellate court judges, but they are kind of going to be washed away in the overall composition of the court. And so you would just have a small, a cohort of frequently reversed judges within the federal judiciary, which is bad, but it's not catastrophic. But if the Trump administration

follows the advice of these people, as you were saying, Sarah, they're just going to constantly being enjoined. They will be enjoined constantly. And then some of these same voices will say, well, if you're really strong, if you're really tough, if you really know what time it is,

then it's back to Andrew Jackson times and was it the possibly apocryphal or did he actually say justice Marshall has made his ruling now, let him come and force it. Um, then that's the next step here because you can't affect new outcomes merely by changing your legal representation necessarily. You're still going to run against the brick wall of precedent. you're still going to run against the brick wall of precedent.

And so that's what concerns me is then the next step after all of his lawyers fail and lose, then what comes next? That's one of the things that concerns me. All right. Last up, TikTok. TikTok. So a few of you had issues about our take on TikTok. I really enjoyed the part where the person guessed

that we had no experience with TikTok. Quite the opposite. I've been on TikTok for many, many hours. I'm not proud of it, but it's true. They also said that basically I made up the stuff about the anti-Israeli bot farms, etc. This actually all came from Jeff Morris. He is the managing partner at Chaperone and former VP of products and revenue at Tinder. So he was basically trying to get like sort of recreate the algorithm. One example that he gives, for instance, is the top hashtag is 3 billion views for the pro-Palestinian side versus 200 million for the Israeli side.

views for the pro-Palestinian side versus 200 million for the Israeli side. And if you look at the other hashtags, he said, it is clear that Israel has a distribution issue. Another point this person made was that TikTok is not owned by the Chinese government. Uh, true, but that's a real misunderstanding of the Chinese government. You're right, it's owned by ByteDance. I've got a bridge to sell you in Arizona. Yeah, yeah. No, a Chinese-owned company is under the thumb of the Chinese government. I mean, that's just life.

That's just life over there. And look, there's a good point. I think there's a good point in critique that we should deal with and I think a bad point, but in part, that's a little bit our fault because we had had a longer discussion of TikTok before that really broke out the difference

between the national security concerns about TikTok versus the expression concerns about TikTok. And we had said pretty clearly that the expression concerns about TikTok, that we don't like TikTok because it's making people more image conscious or increasing anxiety or things like this, that those kinds of concerns, which are sort of the same genre of concern that exists for social media writ large, is there are real First Amendment issues in saying we're going to cut off access to social media, whether it's TikTok or others, on the basis purely of the content of the communication and the impact that it's having on teenagers.

And there's cases winding through. We've talked about these cases. And I agree that if your beef with TikTok is specifically and only related to content of TikTok, that is a separate issue than if your beef with TikTok is related to the fact that it is a Chinese company collecting private information about American individuals and ultimately operated according to China's best interests in a manner that can render Americans more vulnerable to the Chinese. Because I'm sorry,

the Chinese government does not have a First Amendment interest here. It doesn't. Okay. And so when you're talking about a Chinese company that is gathering personal data of Americans, there are national security interests that start to get implicated. personal data of Americans. There are national security interests that start to get implicated. And then the use of that personal data from Americans to generate content to advance Chinese interests,

all of this is located in a national security context with an entity that is not in the same position, sorry to say, as Instagram. It's not in the same position as Facebook. It's not in the same position, sorry to say, as Instagram. It's not in the same position as Facebook. It's not in the same position as Twitter. There are national security issues related to a Chinese-owned company gathering private information

about American citizens for Chinese interests that really do matter and do not specifically sound in the First Amendment. So a couple of things to add to this. One, there's the question of, are we against foreign speech? And in short, my answer is yes. In the sense that it's not protected by the First Amendment, we do ban foreign money, for instance, foreign donations for campaigns. And I think of this in a very similar light, David, and you gave the example last time that an American can start a, you know, Pravda during the Cold War or a pro-Palestinian anything they want here in the United States. And you and I wouldn't say boo about it.

The point here is, in fact, that it is a foreign controlled entity doing this. So yes, I am in that sense against foreign speech, or at least feel no compulsion in regulating it far more than I ever would even think it was positive to regulate American speech. I don't want to regulate pro-Palestinian, pro-Hamas even speech in the United States. I do when it's a foreign country, sending it into our country. Second, that the reason that I want TikTok banned is because it's bad speech. Exposing people to bad speech will somehow brainwash them and that we need to protect people from, quote, bad speech. No, I think I have made very clear on this podcast over and over again that I think the best Supreme Court decision in the history of the Supreme Court is the Skokie case. Obviously, I think that's bad speech.

I am not pro-Nazi. So it's not that I'm against bad speech. It's that I'm against a foreign government being able to control where the majority of young people are getting their news. And as this person also wrote in the comments section, TikTok does not censor reader responses. Nope, they very much do. In fact, there's lots of evidence that TikTok has taken down people's posts with the Chinese government doesn't agree with it. Try posting something about the Uyghurs on TikTok, friend. Of course, it's censored. Just like Twitter, by the way, and Facebook, quote unquote, censor.

They take down stuff, too. All the time, yeah. It's just that the Chinese take down stuff that's critical of the Chinese, for instance. Whereas Facebook doesn't take down stuff that's simply critical of Facebook or critical of the United States or anything like that. They have their rules. They could make up any other rules they wanted, though, certainly. And that also this person says that based on their extensive reading and viewing of TikTok, it would be ridiculous as an empirical matter to claim that TikTok is generating disproportionately anti-Israeli propaganda. Again, this is where I would send you very much to that

Jeff Morris feed where he looks and finds exactly that when he's sort of looking at, you know, from his, again, as an expert who did product development for Twitter, he is trying to sort of reverse engineer that algorithm. And of course, that's very much what they're doing that's what those bots do they create as much content as possible um for that exact purpose so again yes i'm against foreign speech no i'm not for limiting bad speech qua bad speech because i don't think we have a good definition of what bad speech is and that so i'm with you that that's what the public square is for but it's the american public square and everyone has to then abide by those rules. The Chinese government isn't doing that. And again, feel free to post about the Uyghurs and see how that goes. When there was a comparison to Twitter made, I agree that Twitter is an absolute cesspool. I'm off Twitter now and

it's an absolute cesspool. It's a cesspool of anti-Semitic speech. It's horrible. It's also an American company. The First Amendment applies absolutely here. So it is not that we're saying that the specific content of the speech is a reason to suppress the speech. What we're saying is you have a Chinese company collecting private data for American citizens for Chinese purposes, and that offshore Chinese company generating its algorithmic energy or projecting its algorithmic energy into the United States of America, that's, again, the First Amendment implications there. We're not violating the First Amendment implications there, we're not violating the First Amendment by stifling speech of Chinese companies. It is not a violation of the First Amendment. There are times when foreign, you know, when a foreign individual is on American soil and speaking on American soil, for example, you've got, there are a lot of other issues. But as a general matter, the objection to TikTok is that this is a foreign entity collecting information about Americans and then using that for the purposes of advancing, advancing the purposes of a,

quite frankly, of a country that we're in a Cold War with. And there's this old saying where the Constitution isn't a suicide pact. That doesn't even apply here because in many ways, to many aspects of what the Constitution doesn't even apply to what TikTok is doing. So you're sort of saying, we need to give extra constitutional benefit to TikTok.

No, I don't think we need to give extra constitutional benefit to TikTok. Whatever aspect of TikTok's operations is protected by the First Amendment, whatever aspect that is, is defined by courts, fine. But there is a whole giant pile of operation that TikTok runs that is not covered by the First Amendment,

that is undertaken by a Chinese company. And no, just no, we don't have to abide by that. So sorry, young people. Look, this will be litigated and we may be wrong on the law, but a number of states have already tried to ban TikTok under different theories. The overall point, of course, of our last episode was that we believe that you can

ban TikTok under this national security theory. And then it becomes sort of increasingly more difficult to win any ban TikTok or otherwise under various other theories, be they the addiction theory, the unhealthy theory, they ban, you know, they censor speech, and we don't want speech censorship type stuff. But the national security one looks the strongest, and that would only really apply to TikTok. So if you're looking to ban Instagram or whatever, you're going to move to something more like this addiction theory. And the lawsuit that we were talking about,

of course, wasn't a ban at all. It was a civil lawsuit against Facebook and those guys. So anyway, fun times. Yeah. Yeah. I love TikTok, by the way. I think it's like, I think their algorithm is better

than any other company's algorithm at finding stuff that will keep you on TikTok. It's so good at it, which is why I deleted it off my phone. That and the national security concerns. Because there's a reason that TikTok is banned from government phones. It's not only that it's being manipulated by a foreign government, but there's national security concerns with even having it on your phone and the data that they're able to collect on you personally and certainly on you writ large as you're aggregated with other americans so yeah i think you should delete it from your phone it's um incredibly good

at what it does and that's part of the reason to delete it um one can i say highlight one last issue that i think is important that i'm just going to put a pin in it because we didn't discuss it in part because I don't quite understand it yet. And this is, and I, I just haven't looked into it enough, but this is a very significant legal, legal development development was discussed or was announced last night, and this was a jury verdict of $1.8 billion

related to real estate commissions and the way in which real estate commissions are generated. And that the finding, the jury ruling, was that several large brokerages had conspired to artificially inflate the commissions paid to real estate agents. It's a $1.8 billion verdict. The court can conceivably issue treble damages in the case, which could swell it to more than $5 billion.

And as the Times News report by Deborah Kamen says, it's a decision that has the potential to rewrite the entire structure of the real estate industry in the United States. Seems important, Sarah. So I want to dive more into that and come back and have a little bit more detail about that because it is fascinating.

I've already put out feelers to some expert friends in the real estate industry and see how they're reacting to that. But it has a great deal to do with why is it that you never can seem to negotiate your broker fees? So anyway, that'll be a fun conversation. That's funny, David. So when we were buying this house, I definitely just went and found a bunch of different real estate agents because we'd already found it. There was nothing special about the contract that needed to be drawn up, etc. And so I went and asked, I'll pay you a flat fee to simply sign your name on this because it's required in Virginia. Yeah. And yeah, a lot of them wouldn't do it because then they'll be considered scabs

to their fellow real estate agents. I did find one who did it. And so we did exactly that. We paid a flat fee. He signed his name to it. We saved a lot of money doing that. Oh, I bet. It was really hard to find someone.

Yeah. That took perseverance to do that. It did. But you know what? If you dangle money in front of my face, I'll persevere quite a bit. No, I like it. How was trick-or-treating at your house last night, David?

You know, it was interesting. We normally have just this massive influx of kids because we live in this neighborhood that people drive from miles around to trick-or-treat. It's like Pleasantville. Yeah, it is. And yet we had a fraction of the norm. And my youngest daughter went out trick-or-treating and she said it was very light in the neighborhood, which is strange, but it was also really cold. It was in the thirties. So I don't know if that meant people

are staying closer to home, but normally it's just swarms of kids, just swarms. And so now we have a... What were you handing out? Oh, the best, the best combo. So it was Reese cups. It was, uh, Twix. It was little Snickers. And then the piece de resistance, Sarah, which nobody else hands out

because it's an overlooked, underappreciated candy that everybody loves, the York peppermint patty. No, only adults love that, David. Children don't love York peppermint patties. What? They're the best. Yeah, you're an adult, correct? Yeah, well, you know, sometimes.

Do you know any children who you've ever seen eat a York peppermint patty? Me, when I was a kid? No. No? I'll need a second dose on that. Because you don't remember well the 80s commercials, feel the Alaskan tundra like you would. Oh, I remember that, yeah.

Yeah, yeah. No, I've been having the Alaskan tundra whip the diminishing remnants of my hair for years as a York Peppermint Patty. So this is going to be... What size were you handing out? The minis or... Not the York Peppermint Patties, but of the other ones. How big?

Oh, all minis. All minis. Good. Okay. So that's good. Because now... So first of all, someone handed out full-size candy bars yesterday. And we got home.

I let him have a piece of candy and then I put him to bed. And then obviously, I took out the full-size candy bar and hid it and put the rest of the candy back in his bucket and put the bucket in the pantry. So this morning, he's like, where's my candy?

First thing when he wakes up. And I'm like, it's in the pantry. You can go find it. So he goes and gets out his bucket. He dumps it all on the floor's like, where's my candy? First thing when he wakes up and I'm like, it's in the pantry. You can go find it. He goes and gets out his bucket. He dumps it all on the floor and says, where's the big one? I didn't eat it.

Oh, wow. So I had to admit that I hid it, hand it back to him. So that was obviously the first thing he wanted. I had to make all sorts of deals. He had to eat the full omelet

that we made him. Then he could have the Milky Way. Yeah, I don't know why he picked Milky Way of all the full size candy bars they had. My son does not yet have good taste yet, but whatever. Yeah. That's a pre-literacy mistake. I think each day I'm going to siphon off like 20% of the candy, hide that, and then he'll,

like, it'll just then go down and then it'll be gone in a few days, basically. Because the other thing is at three and a half, he actually only went to, I don't know, let's call it 10 houses. And then it was like, I'm cold. I'm done with this. So we actually don't have that much candy, but I need to start stealing it pretty quickly. We already got the hard ones out

that he's definitely not going to eat. The Tootsie Rolls, good luck with that, son. You don't have enough teeth for that. Oh, we have this giant tub of candy. Maybe we should just put it up and save it for next year. For sure. Yeah.

But I have already been nibbling on it, Sarah, which is a bad thing. The York Peppermint Patties. The tundra, Sarah. The tundra. All right. Thanks forundra. Alright. Thanks for joining us. Next time we'll talk about that other Supreme Court

case, Trump too small. Can you get a trademark for something that is derogatory against someone without their permission? It's a barn burner. Oh, oh, oh Oh, oh, oh