Advisory Opinions - Texas Social Media Law Goes to Court

Episode Date: May 14, 2022

David and Sarah spend serious time talking about social media censorship, modern "public squares," and the ability of Texas and Florida to moderate Twitter and Facebook. They also dive into the legality of picketing at home, answer listener questions, and start a conversation about abortion and philosophy that they'll finish live and in-person in Miami on Monday.   Show Notes: -Manhattan Community Access Corp. v. Halleck -Washington Post: “Yes, experts say protests at SCOTUS justices’ homes appear to be illegal” Learn more about your ad choices. Visit megaphone.fm/adchoices

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Details at fizz.ca. You ready? certain conditions apply details at fizz.ca you ready i was born ready Welcome to the Advisory Opinions Podcast. I'm David French with Sarah Isker, and we're a little late. We're a little late this week. I was traveling, really spent a lot of time in Tulsa this week, and just a ton of time talking to folks and learning about the Tulsa Race Massacre of 1921 and its aftermath. And it was an intense week. I'm glad I did it. And I've got stuff to say and write about it in the future, Sarah. But we're going to be, we've got a, gosh, we got a bunch of stuff, including why your Mother's Day was ruined

and then why your Mother's Day observed was ruined and what that means for America. And it does mean something for America. So we're going to start with that. We've got some continued fallout from the draft Dobbs leak, including a more exploration of the legality of protests at home. And we've got some reader or listener questions that we're going to get to. And then some philosophical stuff at the end, including questions about ectopic pregnancies and questions about the whole concept of abortion as murder. So let's start. Why, Sarah, is your Mother's Day celebration of national importance? the Supreme Court set for oral argument quite suddenly the vaccine mandate case.

And so that caused family lockdown because you couldn't get COVID. And of course, obviously, my husband was preparing for that oral argument pretty intensely. Fast forward, the Fifth Circuit had set the Texas social media bill oral argument in New Orleans for the Monday, this past Monday, which is the day after Mother's Day, which meant that husband of the pod had to fly out pretty early in the morning on Mother's Day. Fine. Mother's Day is, you know, the date itself is made up. So don't care about what day we celebrated on. We decided to have Mother's Day observed on Wednesday. So Scott got back from the argument. We had a nice little chit chat about it. Gosh, you know, I clerked for, I clerked on the fifth circuit, first of all, but also I clerked for one of the judges on the panel that he had. And in fact, she was the presiding judge

of the panel. So I had a pretty good sense of how long it would take for an opinion to come out, I had a pretty good sense of how long it would take for an opinion to come out. You know, a month, two months, thereabouts. And instead, Wednesday night at 6 p.m., the divided panel, Edith Jones and Andy Oldham, Leslie Southwick was the other judge in the panel who, for reasons when we talk about the oral argument, I think we can assume was in the dissent, although it actually didn't list which judges were which, lifted the injunction on the Texas social media bill. So as of 6 p.m. on Wednesday, David, the Texas social media bill went into effect. And I don't think I'm letting any cats out of the bag by saying we did not have Mother's Day observed on Wednesday evening. that purports to expand the user's rights to be free of viewpoint discrimination

from social media platforms. So makes them sort of expose the way in which the algorithm works, expose the way in which they prioritize content on the service, and then limits the ways in which a social media platform can moderate its content. And there's one other piece of it, by the way, because I sort of think of this in three separate categories. There's the content moderation part, sort of non-viewpoint discrimination part.

Then there's the due process-y part. Then there's the due process-y part. You have to tell us what you're doing, do all this reporting to the government about what you're doing, and allow individual users to sort of have an appellate process within your business. And then three, and David, this part is just fascinating to me and hasn't been litigated. And I just am at a total loss for why we're not all talking about this and frankly laughing about it. The bill says that you can't not operate in Texas. So if, for instance, you don't like the regulation or like, well, okay, we hear you, Texas, but unfortunately, like we're not going to change our business to do that. So we're just going to stop operating in the state of Texas. The bill actually says that a business covered by this regulation cannot deny

service to a resident of Texas. As some person said on Twitter that I just died laughing about, they were like, why aren't we using this for other things? This means we could have White Castle in Texas. We can just force them to do business in Texas. Yeah, so we'll get to that part a little later, but it'll become, I think, quite relevant potentially, David, now that the bill's in effect. And David, worth mentioning also the 11th Circuit. We saved our conversation about the Florida bill oral argument so that we would have the Texas bill oral argument because they were in close proximity. Are there any meaningful differences between the two to you? I don't think, I mean, the bills are distinct in that they're obviously not identical. I think the Texas bill, if anything, is a little bit more ambitious than the Florida bill. But the fundamental underlying

legal principles are essentially the same. So if you're going to be, you have to be able to breach through the argument that these social media companies will erect both under, say, Section 230 and under the First Amendment. You have to breach through the First Amendment and Section 230 wall to implement either one of these regimes. And I think if you breach through the First Amendment and Section 230 wall, then you've got a lot of different legal regimes that a lot of different states could pass that really the key issue is common in both cases, which is the Section 230 First Amendment wall, not so much the particulars of each state's statute. So yeah, they're a little bit different. The Texas law is really a pretty darn ambitious law. And it's giving users an incredible ability to sue social media companies

and really limiting the ability of social media companies to engage in what, to censor based on quote-unquote viewpoint. And we can get into why that's not as easy to really describe and not as easy to pinpoint what viewpoint discrimination is in certain contexts. But I would say the Texas social media law is a bit more ambitious than Florida's, but there's far more common legal issues than there are differences. I think that's exactly right. So since the 11th Circuit went first, that was Paul Clement arguing just after the Coach

Kennedy case, of course, just a couple of weeks ago. Give us your rundown of the 11th Circuit argument. Yeah, the 11th Circuit argument was interesting because the panel kind of seemed, especially in the early questioning, baffled as to why this would be constitutional. It's a good way to describe it. And really, a lot of the discussion centered on this question of, wait a minute, we're clearly allowed to consider motive in passing a law when it comes to the free exercise clause. Aren't we allowed to consider motive in passing

a law when it comes to the free speech clause. And if we are allowed to consider motive, it's really very clear that this law was passed to punish social media companies for decisions that they made regarding viewpoint related decisions that the state of Florida didn't agree with. And it's, this was a punitive act passed to punish these companies for, for moderation decisions of the state of Florida didn't like. And so hovering over the whole thing, you could tell was, wait a minute, the Disney law, right? The Disney law. Because Florida's defense on the Disney law is going to have to sort of center around, you can't really look at motive here. It's, you just have to look at the,

the face of the statute. You don't look at motive. And on the face of the statute, there's nothing about this discriminatory against Disney's viewpoint, move along, nothing to see here. And so what was pretty clear to me was sort of this idea that, wait a minute,

uh, in the 11th circuit, uh, I'm sorry, don't these companies have first amendment rights? And that seemed to be taken for granted almost. And the really interesting discussion was the motive discussion. Um, now again, you can't consistently predict outcomes based on, well, let me put it this way. You can consistently predict outcomes. You can't do it with 100%

certainty based on oral argument. But based on this oral argument, I would be really surprised if the Florida law survives. Now, I don't know what impact this Fifth Circuit opinion will have on it. It's not even an opinion. This Fifth Circuit order will have on it. But the bottom line was the 11th Circuit panel just seemed to be approaching this from a standpoint of, wait, hold on here. These companies have First Amendment rights, you know, and you're trumping them. What am I missing? It's kind of the tenor of it. So obviously the Fifth Circuit didn't approach it the same way. And Sarah, what was your assessment at the end of oral argument on the Fifth Circuit didn't approach it the same way. And Sarah, what was your assessment at the end of oral argument on the Fifth Circuit? It was a weird argument, David. Okay. So first the Texas solicitor general's office was arguing on behalf of the law to defend the law. So they went first because the district court ruled against them. So, um, they're the ones appealing, if you will. I gotta say, I thought it was notable that the solicitor general himself didn't argue the case. They had sent one of his deputies, which, look, there's lots of reasons that happens. He might have just had another argument.

He did have that Supreme Court argument quite recently. But another reason is, if you never thought this law was going to go into effect, you knew the district court was going to enjoin it. You sort of are just going through the motions like, effect. You knew the district court was going to enjoin it. You sort of are just going through the motions. Like maybe you send your deputy to argue this case. I, again, I have no idea which it was here. Very possible that it was just that Judd had needed to put all of his time into preparing for that Supreme court argument. And then when the deputy solicitor general of Texas was arguing, it was a pretty cold panel, meaning not a lot of questions. At one point, which is again, less unusual at the circuit level, but still relatively unusual

where there's just no questions. And so the advocate has the choice to make some additional points that they haven't gotten to make yet, or to just sit down and say, if there are no additional questions, I'll give back my time. Now, the deputy solicitor general, again, decided to continue making an argument and just went on to some of his other points, but it was notable to me how cold the bench was. And then husband of the pod got up. It was not cold i want to read you one back and forth with judge oldham so david there's a case called hurley from 1995 that was at the supreme court this was about um an irish parade a private group, the South Boston Allied War Veterans Council, was, you know, doing their parade every year for like Irish pride, something or other. And the Irish American gay, lesbian, and bisexual group of Boston wanted to march with them. Long story short, the Supreme Court held, yeah, no, the groups get to determine what

messages their activities convey to the public. And so that includes excluding groups as well. Private organizations, even if they have a public permit or on public grounds, are permitted to exclude groups for their associational rights. It's sort of the key association free speech case. Husband of the Pod mentions this in his opening statement, you know, under cases like Hurley and blah, blah, blah. And that case was mentioned quite a bit in the 11th Circuit argument. Judge Oldham, you know, you mentioned Hurley in your opening statement, and it's mentioned in the

briefs quite a bit. Under that logic, Twitter tomorrow could decide that it can ban all pro-LGBT speech on Twitter, and it has a First Amendment right to do that? Keller, yes. Oldham. That's extraordinary. Keller. Well, when it comes to private entities, government doesn't get to dictate what they must disseminate, what they can't disseminate. Now, again, Twitter hasn't done anything like that.

Oldham. But if I could, it's new ownership or it's future ownership. It could just decide that we, the modern public square of Twitter, the Supreme Court has told us, and I take you don't contest, we can decide that in a modern public square, we will have no pro-LGBT speech, period, full stop, end of story. Thus ends the transcript. But let me add my own addendum, David. That's where the case was lost.

Yeah. At the point that you're not defining them as a private company, but saying that they are the public square, that's it. That would make them a public entity. Can I rant for just a moment? Rant away, David. This public square stuff is total BSs okay it's absolutely all right so i was alive sarah in in like the year of our lord 2004 okay uh we had the internet but we didn't have social media i was alive in 1984 when we didn't have the internet at all. And all we had was the

quote public square. All right. This idea that all Twitter has done is replicate the public square, moved the public square from in front of the courthouse to online is just fiction. So first, is just fiction. So first, that public square, you know, it's still there. You can still go in front of the courthouse or whatever, out in a city park, and you can say your piece. That is unchanged. But what a lot of this rhetoric is implying is that there used to be a place

where we could and would all go together to debate politics, and then that got replaced by Twitter. That's completely false. Well, and as husband of the pod, and I don't have the complete list that he rattled off, lots of social media companies coming up, going down. He mentioned there had been multiple lawsuits about MySpace. Yeah. Now gone. Gone. Gitter, Truth Social, all of these. Parler. Parler. Again, I don't know them all very well. And that even when this bill was being contemplated, TikTok wasn't even really on anyone's radar. And now it has far surpassed Twitter in terms of daily active users. So I mean, this is it to say if the modern public square implies that

there's a single place, but there's very much not. And again, the users are just moving and shifting and deciding where they want to be. So that's one problem with the argument, but David, deciding where they want to be. So that's one problem with the argument, but David, it wasn't the only problem. No. Well, but one more thing on this public square issue. What we're talking about is you're arguing that you have a legal right rooted somewhere

to make other people publish your little miniature op-ed. So, you know, before social media, I could say whatever I wanted. I could go to the public park and say what I wanted to say. And I could spend all day typing letters to the editor, to the New York Times, to the Washington Post, to my local newspaper. It would have been a very novel argument that they had to publish my letter to the editor and that they could not discriminate on the basis of viewpoint to publish my letter to the editor and that they could not discriminate on the basis of viewpoint to publish my letter to the editor. That's what we're talking about here are like little letters to the editor, little op-eds. And we're saying that private entities have to publish

my op-eds. So interestingly, the deputy solicitor general had an answer to that, that I thought was not frivolous or at least worth sort of the philosophical think-through. Although, oddly, even though I'm going to say that I thought it was interesting, the judges didn't seem to find it interesting, the ones who then sided with him. But nevertheless, I didn't. It's my podcast. His answer was, yes, but newspapers are making decisions before they publish what they want to publish. That is their sort of creative content control. They look at all these submissions or decide what to write before publishing. In this case, the business model itself is everything gets published and

then they go through what's already been published and take some things down. I don't know if that's meaningful to you, but I do see it as a distinction between what you're talking about in terms of sending off letters to the editor. And one of the questions he got back was, okay, but like, they can't look at billions of things before they get published. And his answer was like, yeah, I get that that's not compatible with their business model, but that's not my problem that their business model then isn't analogous to a newspaper or in this case to Hurley where they were saying ahead of time they didn't want to march alongside the LGBT organization. It's not that they were already marching and then decided one by one to tell people to leave the parade course. Yeah, so that's a little bit of a deceptive framing, I think. So the reality is they do regulate ahead of time.

They ask you to agree to the terms of service. And you agree. You mark that you agree to the terms of service. Now, I may think the terms of service are broad or vague, that they shouldn't be the terms of service, but they're the terms of service. And the Hurley analogy would be, imagine you join a parade and you say, I agree that I will refrain from contradicting the parade organizer's message. And then when you're marching in the parade, you unfurl a big banner and then they could yank you out of line. And if you protest, you say, well, you agreed before you joined this parade that you were going to comply with our rules.

as anything goes and then we'll do a post hoc analysis. It's by joining, you're agreeing to our rules. Here are our rules. And if you violate our rules, we will take down the content. So David, that would make sense for violence, threats, things that are like clearly in violations of their rules. But of course, these social media companies are arguing that they also can take down things that they just don't like, that it's their right to do so. So that's a little different than the Hurley example, because you just can't say something we don't like. And it's our choice

of whether you get to continue parading with us based on... We want you to unfurl banners. Everyone is going to unfurl a banner. But after you unfurl that banner, we have the right to decide whether we like that banner. And also, we're definitely going to remove you if it's a violent threat. But even if it's not, it's our choice of whether we like it. Right. But that's not really the terms of service. The terms of service are, here's the kind that we're going to remove violent threats um but we're also going to remove content that's in categories a b c d e f and g that's you know roughly twitter's sort of hate speech policy and so um that's the that's the scenario that's the scenario because they say it's not just simply now the problem is i hear but in practice, I think it's closer to mine than yours.

Everyone unfurled their banner, and some of the banners we're not going to like. Well, and that's a lot of the Elon Musk argument is... And because it's interesting, Musk has been saying that he thinks Twitter should be able to remove content that's wrong and bad. He thinks Twitter should be able to remove content that's wrong and bad. So all of a sudden it goes from free speech, free speech, free speech to Musk is acknowledging, well, we're going to have to remove some content. But, you know, his, I think his argument is, well, I would just do it on a fairer basis. I wouldn't be inconsistent.

But one thing that about these cases, though i think is really um being overlooked is that many of these platforms just wouldn't be able to function in the market they the market for them would become to begin to shrink dramatically in the absence of moderation policies. But again, that's not Texas's problem. A law could be totally lawful and it could hurt your business. That's what happens. The whole argument is the reason why we're going to regulate these things is because they're popular and lots and lots of people are on them and and that's the public square. And so, therefore, we're going to move in and we're going to essentially require the kinds of moderation policies that, ironically enough, may well just blow up that new public square. It's a little bit

of a problem in my view. And again, it undermines the whole public square argument to begin with, that this is not the public square. These are curated private entities that have created a particular kind of community that they want to create. Now, it's pretty broad in the kind of speech it permits. I think they are often inconsistent in the way in which they enforce their own rules, and I think that's a real problem. way in which they enforce their own rules. And I think that's a real problem. But the idea that the state can come in and say, we can have our cake, very broad platform, and eat it too, with all of the speech on it that we want on it. I think that they're presuming some facts and not in evidence. All right, I've got two more exchanges from the Fifth Circuit oral argument that I want

to read from the hot bench side of it. You'll notice none of these exchanges are from the first half of the argument. This is all going to be husband of the pod. And it's not just because I like him a lot. This is another Judge Oldham. The next one will be Judge Jones. But here's Judge Oldham. Tomorrow, could Verizon decide Verizon's obviously a common carrier in its provision of point to point communication? carrier in its provision of point-to-point communication. Tomorrow, under your theory, could Verizon decide that they are going to overhear every phone call, use computers or software or teams of people to listen to those phone calls, and when they hear speech they don't like, they terminate the phone call. They terminate the user and they prohibit the user from ever using a Verizon service of any kind ever again. That's what the First Amendment requires because

it's a private company. Now, before I read Scott's answer, I just want to give a slight explanation of this. So this is under the theory that instead of it being little op-eds that everyone puts out there, David, where a newspaper, for instance, is communicating its message passively to a public, right? It's not a conversation. The public can't respond back. Judge Oldham was talking about this from a common carrier analogy, and that it's more like people offering a platform where people can communicate one-on-one with each other. And so which one is it more analogous to? And so he's asking whether Verizon, clearly a common carrier, would have the same rights as a newspaper under Scott's theory. Keller, those telecom services are nothing like publishers such as websites. And indeed, Judge Southwick, you mentioned the DC Circuit's net

neutrality opinion. Whatever the vagaries there are about internet service providers or the telecom industry, all three judges on that panel, Judge Srinivasan, Tatal, and Kavanaugh, agreed websites like Google and YouTube and Facebook and Twitter are not common carriers because they don't hold themselves out as affording neutral indiscriminate access without any editorial function. So that's a long-winded way of Scott's answer being, Judge Kavanaugh says you're wrong. These aren't common carriers. We don't even need to discuss hypotheticals about whether a common carrier could do this because a very important part of being a common carrier is basically holding yourself out as a common carrier. Okay, Judge Oldham.

But we're now conflating two different questions, right? The question for the DC circuit is, do the common carrier regulations the FCC administers apply to these enhanced information service providers? Flag that little comment real quick. My question is different, which is, could Verizon come into federal court and say, we Verizon, a private company, have a first Amendment right to do this? So I'm not asking about the current common carrier rule. I used to practice in telecommunications law. I got it. I understand the vagaries of those rules. My question is about the First Amendment to the United States Constitution. And could Verizon say, hey, we are a private company. It is our private infrastructure. And if we want to listen to

your phone calls, terminate them, and then prohibit you from ever using our services again, that is our First Amendment right. That's another exchange where you could pretty much say how this case was coming out. Last one, David. Judge Jones, you're not a website. Your clients are internet providers. They are not websites. Oh, gosh. Keller, no, Judge Jones.

They are websites. They are also applications that can be accessed. Jones. They are defined in the law as interactive computer services. Now, how can you be one thing, but which also distinguishes my humble view between an interactive computer service and publisher? Jones, are your clients' interactive service providers interactive computer services under 230? Now, this is where an oral advocate is, I think. You miss these little moments of very smart answers, by the way. So take a moment to think of how you would answer that. And then I'll read you Scott's answer. They do qualify for Section 230 protections. Why did he have to answer it that way? Because if you

notice, she had just said, are your clients interactive service providers, interactive computer services. Those are totally different things. So you could correct the judge and give her a lesson on the difference between ISPs and interactive computer services. But instead, he just said they qualify for Section 230 protection and is not getting into the definitional problems. Judge Jones, that's right. So if you say, I'm sorry, I'm probably dumb, but I don't understand why entities that accept this definition as interactive computer service who shall not be treated as publisher or speaker of any information provided by another information content provider. If we hold that you are publishers or speakers of information that you choose not to provide, then you do not have Section 230 protection. I don't see how you can have it both ways. So David, I actually think this is an interesting argument, and people sort of made fun of Judge Jones for saying that they weren't websites. They missed the point of the question.

yes, she was screwing up the words for ISP versus interactive computer services. But it is true that under Section 230, you're saying you're not treated as a publisher of the content, which is why you get to edit the content without being sued for defamation. And at the same time here, they're saying we are the publisher and editor and have creative control over the content, which is why we get First Amendment protection. And at some point, Judge Oldham asked, couldn't Congress say you will have Section 230 protection if you give up your First Amendment rights and instead agree to, for instance, something like the Texas social media bill? They had a long back and forth. The short answer to that is, yes, Congress could have done that. They didn't. So it's all kind of moot. It's not implied that Congress took away their First Amendment rights. And I don't think

you could do that as an implied condition. It's not even clear that it wouldn't be an unconstitutional condition in this case to give up your First Amendment rights for this protection. But I think that's a much closer case. Regardless, Section 230, not a lot of friends here in this oral argument. Yeah. And Section 230 does exist for now. There's a lot of talk about reforming it. And it's certainly under the supremacy clause should Trump taxes social media law, but apparently does not here. And the interesting, but what's interesting to me is, you know, speaking of Kavanaugh,

you know, you go back to 2019, not that long ago, and there's this really interesting case called Manhattan Community Access Corporation, the DD-holic, which is essentially saying that denial that dealt with access to public access television and public access, if you remember this, oh gosh, why am I blanking on the name of the Dana Carvey movie? I love Dana Carvey.

Where they're on public access TV. Oh, Coffee Talk. No. Oh, Wayne's World. Wayne's World. Wayne's World. Yes, yes, yes. Wayne's World.

Party time. Excellent. Yeah, okay. Anyway, this is sort of, it feels like a blast from the past case because it was talking about ability to broadcast public access television. And what was interesting about this case is it was directly on point with the idea of, hey, what does the First Amendment regulate and what does free speech clause protect? What does it not? And Kavanaugh begins his opinion saying the free speech clause of the First Amendment constrains governmental actors and protects private actors. To draw the line between governmental And then if you're going to say that,

you know, for example, that there's going to be some sort of First Amendment protection that applies to my ability to access a private channel, the question is, and this goes back to my public square thing, is what the provider is providing a traditional and exclusive public function. And this gets to my sort of rant on the public square stuff. And essentially what the Supreme Court says is that providing an outlet for my opinion is not actually a traditional public function. That giving me a place to vent my opinion is not what the government, it's not an exclusive government function.

And I think that's one of the things that a lot of the folks are missing when they're talking about this public square rhetoric, et cetera, is that prior to social media, the government was certainly protecting, I was protected from overt acts of censorship, but this idea that the government had to sort of find for me an outlet and make sure that I had an outlet, that's not a traditional government function. And so there's a lot of confusion about this, about Section 230, about sort of like what free speech doctrine and free speech realities were before social media.

And I felt like, you know, as you're running through this Fifth Circuit oral argument, it feels like a lot of that online confusion and conversation leaked into the offline world and the oral argument because the judges on the panel were asking the kinds of questions you see on Twitter that are not super informed by the law, which was why I was a bit surprised by some of these exchanges. So David, I read some of those Judge Oldham exchanges where I told you that you could very easily see which way Judge Oldham was coming out on this. And I've almost read you all of those Judge Oldham exchanges where I told you that you could very easily see which way Judge Oldham was coming out on this. And I've almost read you all of the Judge Jones exchange, but let me read you how it ended. Oh, please. So remember, we left off on, I don't see how you can have it both ways about Section 230 and the First Amendment.

Keller, so there's no tension between the First Amendment and Section 230, both protecting editorial discretion. And here, no statute can overturn a constitutional right. Jones, Congress premised this on the representations, I believe, of interactive computer service providers that they were different from newspapers and therefore were not liable potentially under New York Times v. Sullivan. If we say no, Congress was wrong, then the whole basis for the law fails. Keller, well, your honor, I think online newspapers today also have Section 230 protection. Jones, I understand that, but I don't see Facebook, YouTube, and Google as being the same as Breitbart or Axios or HuffPo or whatever. What?

Anyway, so that was the end to me of Judge Jones's vote. Yeah. And fast forward, as we said, to Wednesday evening, you then have a one-sentence order, no opinion, says the panel is not unanimous on the order, and that's why I say at the beginning of this that Judge Southwick dissented, even though we don't actually know that. Judge Southwick, throughout the oral argument, don't actually know that. Judge Southwick,

throughout the oral argument, seemed to be incredulous at what he was hearing. Yeah. So his questions were like, wait, what? Huh? No, what? Anyway, David, so because this is an active litigation, and I live with husband of the pod, starting Wednesday at 6 p.m. when this order comes out, I am not going to talk about anything that has happened from that point. So why don't you talk to our listeners about what that order means, what happens from here, in your opinion, that is not informed by living with one of the litigants. Yeah. So you immediately have a decision tree, a branching decision tree in front of you because you're going to appeal, obviously. So to whom do you appeal? There's really two options here. One is to go to the full

circuit to do an appeal en banc. The other one is to go to the Supreme Court. bonk. The other one is to go to the Supreme Court. Now, a couple of factors come into play here. One is you also know that the 11th Circuit has heard argument on this matter. And if the oral argument is as predictive in the 11th Circuit as it was in the 5th Circuit, you're probably going to have a circuit split. Now, so you know that Florida is likely going to appeal from the 11th Circuit order. You're going to appeal from the 5th Circuit order. You've got a circuit split, which is probably coming, which makes it very ripe for Supreme Court review. You've got an issue of national, urgent national importance, sort of right in the wheelhouse of the modern practice of the emergency docket. And then you have no guarantee that the Fifth Circuit, looking at this en banc, will act with any more speed

than the Supreme Court. Now, I would think if I felt very confident that I would win on Bonk with greater speed, I would go that route. But with a looming circuit split, with Supreme Court practice, and I think this would even meet the new Kavanaugh emergency docket kind of test, which is, is this the kind of case we take cert on before we're also going to, we're going to decide it on an emergency basis. I think it meets that test because of the very clear circuit split because of the potential for chaos in the marketplace. So my assessment would be you go to the Supreme court. And then there's another little piece of this as well, because I would go to my client and I would say this, the odds that the Supreme Court hears this, a social media case like this are very high. You want us making the argument. You want us, you hired us to make this argument. You don't want the argument. You don't want us sort of relegated to the amicus world. You want us front and center here. That's why you hired us.

If we go on bonk and Florida goes to the Supreme Court and Supreme Court takes it, we're kind of on the sidelines and we don't you don't want us on the sidelines. And so we'll be first into the courthouse on a case of national importance with a circuit split that probably even meets the Kavanaugh criteria for hearing a case on the emergency docket. We should go Supreme Court. That's how I would analyze this. I just also think it's interesting that, you know, I mentioned that case that Kavanaugh was on

that was brought up several times. I just used the one transcript about common carriers applying to Twitter, Facebook, etc. Kavanaugh was on the panel for that one before he becomes a justice at the DC Circuit. So on the one hand, you need to count to four for cert. You need to count to five for this stay issue. you'd think you'd count Kavanaugh among them, but I do think that the emergency docket heat makes this a little more complicated. It does. That's why I mentioned specifically the Kavanaugh test.

Yeah, and I just don't know. I think two years ago, the emergency docketness of it would be far more obvious to me than right now when I think they're trying to slow down their emergency docket generally. Oh, I totally, I completely agree with you. But if you have your limited decision tree of en banc at the Fifth Circuit, which what's the evidence they'll act expeditiously, right? There isn't, who the heck knows? And at least you have some, still have some pretty recent examples of the Supreme Court. In fact, one Scott Keller just argued a case, an emergency docket case, you know, even post Kavanaugh regime of accepting

emergency docket cases for review. So. Well, look, the brisket's birthday is coming up. So maybe this is going to get set for oral argument in June. There you go. I'm just thinking of other things I have planned that could get absolutely demolished. So David, there's another then piece of this, which is what happens from here in terms of what's happening in Texas? So the law went into effect. These companies now have to decide whether to comply with the law. And that's why I mentioned that third bucket where it says you're also not allowed to not

do business in Texas. Because I've seen a lot of people on Twitter and elsewhere say like, okay, well, that's the end of Facebook in Texas. Technically, oddly, Texas can say they're violating the law by not operating in the state. Yeah, it's really interesting. So I was kind of working through this decision tree as well. And I think the kind of most through this decision tree as well. And I think the kind of most rational thing actually is to do nothing.

Just keep going with business as usual. And then say, sue us. Sue us. The enforcement mechanism. Stop doing business. Geofence Texas. Stop doing business and let them sue you for that. Either way, you're getting sued.

You either do business as usual, because some of these reporting requirements from at least, again, what was said at the oral argument, it's not possible to comply with. So either you don't comply because you can't, or you stop doing business in Texas, which is also a violation of the law. Honestly, from a political standpoint, I would love to see you know youtube disappear in texas and see how many hours it takes before greg abbott calls an emergency session of the legislature right i mean it's yeah there's a certain a bit of this it's like okay uh no more youtube no more tiktok no more instagram no more you know whatever and and see how long that lasts. But I think just the most rational decision is to, we're just going to keep doing business as usual. And the enforcement mechanism here is law is, you know, as lawsuits go ahead and sue us by the time

we start to put into process the, you know, we put into motion the process of answering a suit and, and responding to a lawsuit, this thing's going to be decided. One way or another, the state's going to be decided. I also find the constitutional question of why a state can't demand a company do business in the state a little more complicated than it feels when I say it out loud. Because when I say it out loud, that sounds absolutely insane. Yeah. But is it Dant commerce clause? Is it some sort of Lochner freedom that doesn't exist anymore? Privileges and immunities? Like what under the constitution says that Texas, I mean,

technically the way the law is written, it says that you can't deny services to someone in Texas because they are located in Texas. So they're almost like reverse dormant commerce clausing, except that Facebook isn't a state. Facebook is a business. So I just, from a like nerd standpoint, I kind of hope that the whole thing gets litigated because I am very here for how weird that part of the law is. Well, and you know, here's an interesting question. Um, if I refuse to do business in a state, what is, I guess the jurisdiction over me? So what, what jurisdiction does the state have over me? Would it be based on my past commerce in the state? But you're not suing me for my past commerce.

You're suing me for future commerce. So it seems to me- Good issue spotting, David. Yeah, I'm just curious. And I know we have some really smart listeners and it's been a long time, Sarah, since I've gone down the personal jurisdiction route. And I'm sure somebody is going to disabuse me of my jurisdiction issue spotting. But it feels strange to me to say, me in the state of Texas, I have jurisdiction over you, Mark Zuckerberg, in the state of California, to force you to enter my marketplace.

What's the enforcement mechanism for this? If you impose a fine on me, how do you collect that fine as a practical matter? Am I going to attach your assets in California? I mean, there's a lot here that, so a lot of this, this legislation was really performative and the dog definitely caught the car here. A hundred percent. Like SB8, frankly, I think the Texas legislature passed several laws that sounded really good on press releases that they thought would be immediately enjoined. And they were right, except then they were unenjoyed. And so here we are. Except they view SB8 as a success story. And you know what? Politically, they have some pretty good arguments that it was. Legally, I think it is incredibly dangerous, as we've talked about many times.

All right. So, David, lots of conversation over the legality of protesting in front of a justice's home. Two laws in question. One, federal. 18, USC 1507. Jonah, by the way, says that we can only say USC like two times per podcast. So I'm actually, you know what? Title 18, section 1507 of the U.S. Code. See? Yes, there you go. There we go. It is illegal with the intent of influencing any judge to picket or parade in or near a building or residence occupied or used by such judge, juror, witness, or court officer, or with such intent to resort to any other demonstration in or near any such building or residence. There is also, however, a Virginia statute that has become part of the conversation because some of the justices live in Virginia,

some live in DC, some live in Maryland. Anyway, Virginia law. It is a misdemeanor to picket before or about the residence or dwelling place of any individual or assemble with another person or persons in a manner which disrupts or threatens to disrupt any individual's right to tranquility in his home. Although it has an exception for labor disputes, David. So a few things here. One, and we'll put this in the show notes, of course, Eugene Volokh over at Reason totally dismantles the Virginia law. Unfortunately, that exception, that's the end of the ballgame for the Virginia law. That's totally.

Totally content-based. There is an on-point Supreme Court case. You don't get more on-point. It was a different state. That's the only difference. The law is nearly word-for-word the same, but the exact same labor dispute exception. Supreme Court struck it down as a content-based restriction

on the First Amendment. Now, Eugene Bollick says, look, they could simply say that the whole law is void. They could try to just cut out the offending part, so just take out the except. The problem is that then you're left with a law that does the exact opposite of what the legislature intended. They intended to allow for the legal picketing of residences for labor disputes, and you have now just made it illegal, not just neutral, illegal,

to picket residences for labor disputes, which is why he thinks that they can't just separate that part of, that unlawful part of the law to make the rest of the law lawful. All right, so that gets Virginia out of the way and leaves us with the federal statute. David, you and I touched on this briefly and said that we thought that it probably wouldn't withstand scrutiny. And I got to say the vast majority of legal scholars disagree with us. I know. And so I just think it's worth giving them some airtime on our pod.

There was a Washington Post piece that cites many legal scholars almost universally disagreeing with us. Eugene Volokh disagreeing with us as well. I will tell you, though, I think they give too much shrift to Supreme Court precedent that's old, frankly, and too little shrift to the idea that making it only for judges or people involved in the judicial process is in and of itself a content-based restriction. Now, this goes back to the billboard case, David, that you didn't think was interesting, and I think it's directly on point. How do you determine whether something is content-based? If you have to look at the content itself at all, does that make it content-based? In this case, you would, of course, have to look at the content of the speech to determine whether the intent was to influence

a judge. Now, under the Fifth Circuit's billboard case decision, that would be a content based restriction. But under the Supreme Court's decision from just last month, it's the Justice Breyer, I know it when I see it, how does it make you feel content based restriction analysis. I think that's much harder here. Now, of course, we also have the practical problem of if this case got to the Supreme Court and it's about picketing in front of these justices, would you even have a quorum on the Supreme Court for that? It's a bit of a mess. And obviously, it's not going to come before the Supreme Court. You'll notice nobody has done anything. Glenn Youngkin is a Republican. He obviously, it's not going to come before the Supreme Court. You'll notice nobody has done anything.

Glenn Youngkin is a Republican. He hasn't done anything in the state of Virginia. And the Biden administration, DOJ, hasn't done anything at the federal level either. And I think there are prudential concerns here as to why people haven't done anything. Because I think that they think, probably not without some foundation foundation that if they don't do anything, this will end. If they do something, it will, it will only metastasize, um, which is often the outcome of censorship in the United States of America. By the way, there's such a, even if we're losing a free speech culture in the sense of my willingness to defend another person's

speech, we have no loss of the free speech culture and our willingness to defend our own speech. And so one of the fastest ways to sort of make somebody famous is to censor them. One of the fastest ways to put a book number one in Amazon sales ranks is to ban it. book number one in Amazon sales ranks is to ban it. And so I think there's some people saying, look, so we've got police have blanketed these homes. They're safe. They're small protests. If we crack down on these protests, they'll be twice as big. And if we crack down on that, there'll be four times as big. And so I think there's a lot of fingers crossing going on right now that you can just move on in the news cycle and it will peter out, which quite frankly might have some wisdom to it, Sarah. So here's what I think. I think folks are too quick to apply the Cox case, that 1965 case that upheld this law and say that the same would happen today, because I think there is this Austin Billboard-esque content question. If, however, Congress passed something like the Virginia

statute without the exception for labor picketing, if it were just generally a time, place, and manner restriction, you can't picket in front of someone's home if it's a residential neighborhood that is either not zoned for commercial or public use or the things around it would make a reasonable observer know that it's not designed for that. Something to that effect. Then yeah, you can't pick it at all or after 5 p.m. or something, right? I think that would get upheld.

It's the judicial part and the intent part that I think at least would need analysis under Justice Breyer's most recent opinion. I think it would run afoul of it, but of course I also came out with the dissenters in that Austin Billboard case. The case, I just want to remind you that David said didn't matter, wasn't interesting

and that he hated to talk about. Okay, that might not be quite the summary, but let me read you the three interesting cases, David. All Supreme Court cases. One, 1980, this was the exact as the Virginia one, right? A content-based law that exempted peaceful picketing of a place of employment involved in a labor dispute from an otherwise universal picketing ban struck down because it accords preferential treatment to the expression of views on one particular subject. Information about labor disputes may be freely disseminated, but discussion of all other issues restricted. Again, I actually think people are not giving enough that the judicial part of that can just be inserted pretty closely.

Next case. Although it's worth analyzing under strict scrutiny, you could argue that even though it is content-based, under strict scrutiny, it survives because the government has such a compelling interest in preventing picketing in front of judges' homes that that content-based restriction can survive. I'm open to that argument, listeners. I'm not persuaded sitting here because I think there are less restrictive means of getting it done. But like, for instance, their offices, the courthouse, I don't see why, yeah, or passing then the overall ban. Okay. Case number two, 1988 Frisbee v. Schultz, a content neutral law banning all picketing targeted at a particular home is generally constitutional, at least so long as protesters

remain free to march through the neighborhood without focusing on a particular home. This is my equivalent, David, to the just full residential ban with no exceptions is a time, place, and manner restriction that looks pretty good to me. That's where I think Congress could do this. And by the way, why haven't they? Why do we need to be picketing people's homes? Why are only judges exempt from that discomfort? Yeah, right. Exactly. And not abortion providers, for instance. Like why should you get to picket at a doctor's home when the intent is the same to intimidate that person from being able to do their job than a judge's home? Okay. Number three case, Madsen v. Women's Health Center, 1994. This one's the messy one, David. Why? Abortion distortion.

A content-neutral injunction that banned residential picketing within 300 feet of a particular people's homes was unconstitutionally overbroad, though suggested that a similar injunction that banned targeted residential picketing before or about the residence or dwelling of a person would be fine. This specifically involved anti-abortion picketing of abortion providers. But what's interesting here, David, it was not a statute. It was a judicial injunction against picketing. Also, I think it is worth mentioning the lineup of the case. The majority was Rehnquist writing, which is interesting. Blackman, Stevens, O'Connor, Souter, Ginsburg. Who was in the dissent on that case? Scalia, Thomas, Kennedy. Kennedy. Who do I think the court is more like now in the majority? Blackman, Stevens, Ginsburg, Souter, O'Connor, or Kennedy, Scalia, and Thomas? Obviously, Rehnquist being a bit of an outlier there. That case is a messy, messy case. But in the end, David, I believe it comes down to the judicial injunction aspect of it. The abortion providers had just asked

for all sorts of things in this injunction as even like most of the write-ups of this case break it down into all of the QPs. And the court answered, no, yes, no, yes, yes, and yes. So I mean, it was a total mixed bag, abortion distortion. Scalia actually saying that this was about abortion and that this would just simply not be the law if this had been about something else.

As he said, today, the ad hoc nullification machine claims its latest, greatest, and most surprising victim, the First Amendment. Because I believe that the judicial creation of a 36-foot zone in which only a particular group, which had broken no law, cannot exercise its right of speech, assembly, and association, and the judicial enactment of a noise prohibition applicable to that group and that group alone are profoundly at odds with our First Amendment precedents and traditions. Again, I don't know why we are in disagreement with the vast majority of legal scholars. I feel like the Austin Billboard case, very, very on point that no one's been mentioning.

And two, that Madsen dissenters look a lot more like the current court than the Madsen majority. I'm still with us. Team AO. I'm still with us on this. But I don't think it's going to be tested this time around. I know, but I would like to be vindicated. I know. I know.

Well, we're coming close on an hour. We should probably limit the whole rest of the discussion. Fair enough. A few of these are quick. One, for instance, could Katonji Brown Jackson have leaked the draft or the White House have leaked the draft? I've gotten several versions of those questions from listeners. No, the only people who have access to internal court drafts, like are supposed to have access, would be the clerks and the justices and the staff. The reason that we've largely ruled out the staff is because of all the leaks now related to the conversations during conference. The staff would not have privy to those conversations. That would really just be the justices and the clerks. Definitely not a future justice or the White House. Nope, nope,

nope. Nothing like it. Again, unless someone leaked to them, but then the leaker's still a clerk at that point. David, one more question, and I'm going to read this one. With all the Ninth Amendment unenumerated rights conversation, I was wondering if the Ninth and Tenth Amendment are somewhat mutually exclusive. If abortion is an unenumerated right in the Ninth, then the power to regulate abortion, which isn't delegated to the United States by the Constitution nor prohibited by it to the states, wouldn't actually be available to the states either. So I think the answer to this is pretty quick. There's enumerated constitutional rights

that are incorporated against the states, meaning the states and federal government can't touch them. Then there's enumerated constitutional rights that only prevent the federal government from infringing, like grand jury. Then there's unenumerated constitutional rights, which in theory could be differentiated in the same way. But we haven't ever done that before that I'm aware of, incorporated unenumerated constitutional rights differently against states or not against states, not that I'm aware of. Then there's everything else, which is up to the states to decide whether to regulate. So they do interact, but they are not mutually exclusive. Right. They're complimentary because what we're talking about, the Ninth Amendment is talking

about rights. The Tenth Amendment is talking about powers. So the 9th Amendment is saying this Constitution doesn't list all of the rights of the people. And then the 10th Amendment is saying the powers that the government possesses that are articulated in the Constitution, this is kind of like a police power amendment. In other words, saying the federal government

is a government of enumerated powers. In other words, it only has the powers that the Constitution gives it. The states are not like that, that the powers not kind of exclusively reserved for the federal government still rest with the state. And so it's a kind of a way of saying what we're not doing, we're not upsetting the traditional understanding of state power through the Constitution,

unless the Constitution explicitly contradicts state power. And so one's a rights-focused, another one's a powers-focused amendment, and they actually kind of mesh together pretty well. And then I think we'll save our philosophical topics for Monday, especially because, David, you and I are going to do a surprise, but it's a surprise to the two of us, a surprise in-person podcast where we both accepted a speaking engagement for the same group. Exactly. And last night I got the agenda and I was like, there's Sarah. And so that's awesome. We'll be in person. Yeah. So in- person pod is a great time to do some philosophical conversations around what is the eight one issue of our day that we don't see. And what about buying organs? How does that factor into this conversation? A little defining criminalizing is abortion murder. As you said There's lots, and I think it'll be better in person. Yeah, and the abortion as murder framing has gotten more relevant because one of the candidates for presidency of the Southern Baptist Convention just came out in favor of criminalizing women who have abortions. So it's only going to get more contentious, Sarah. So

it's going to be worth exploring that topic. So that's going to be very interesting in person next Monday. But until then, please subscribe where you get your podcasts. Please rate us where you get your podcasts. And please check out thedispatch.com and we will talk to you again soon. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy-to-use app, you can keep updating mom's frame with new photos. So it's the gift

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