Advisory Opinions - The Supreme Court Sides With Process

Episode Date: September 20, 2022

Back in the saddle, Sarah and David explain the Supreme Court’s decision on Yeshiva University v. Youth Pride Alliance (spoiler: this isn’t over yet). Plus: Who gets to censor who in the battle between Texas and tech platforms? Show Notes:-Yeshiva University v. Youth Pride Alliance-NetChoice v. Ken Paxton-Donald Trump v. the United States-Ilya Somin Reason Magazine piece on Texas’ social media law-Andrew Sullivan on monarchy and pre-Enlightenment institutions Learn more about your ad choices. Visit megaphone.fm/adchoices

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Hey, you paid for it, so keep it. Try the other side. Get started at Fizz.ca. If you need some time to think it over, here's five seconds. Ah, do, da-da-dee-da, do-da-do-do. 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 Isger.

And I'm back. I'm back after a week or longer than a week in Alaska for a vacation. And then we had a remote dispatch off-site retreat for the first time in dispatch history at an undisclosed location. And now we're back in the saddle in the regular course of business, and we have got a lot to talk about today. Three big cases the university refused or denied review at this stage in a case involving Yeshiva University that we have talked about in the past. The Fifth Circuit upheld Texas's social media law. And Sarah, that's particularly relevant to you because... Husband of the Pod represents the trade organization

for the social media companies. Yes, yes, indeed. And then a district court judge in Florida has asked for a special or ordered a special master to review documents retrieved from the Mar-a-Lago search. And we'll bring you up to date on all of that. But before we start, that's the order we're going to go. We're going to go Yeshiva, Fifth Circuit, and then district court. But I want to, Sarah, read two quotes, and this will be the interesting theme here today.

Here is quote number one from the Fifth Circuit. We reject platforms' efforts to reframe their censorship as speech. It is undisputed that the platforms want to eliminate speech, not promote or protect it, and no amount of doctrinal gymnastics can turn the First Amendment's protection for free speech into protections for free censoring. Fifth Circuit. Supreme Court. Unless a stay is granted, Yeshiva will be required to recognize the alliance, a LGBTQ group. Yeshiva will be required to recognize the alliance as an official student group and to grant it all the privileges extended to other such groups. As the alliance has contended, this would force Yeshiva to make a, quote, statement in support of an interpretation of the Torah

with which the university disagrees. Do we see any inconsistencies here? Oh, there's so much to talk about today, David. There is so much. There is so much. Well, do you want to start us off with some yeshiva and then we'll roll forward? Absolutely. So as you said, this involves a Jewish university that did not want to recognize as an official university accepted group, an LGBTQ alliance group on campus. The group then uses a New York state anti-discrimination law to sue the university. And basically the university loses all the way up through the New York courts, and there's no stay of that. So before they can appeal anywhere else,

it's going into effect, as in they have to recognize that group. And as we've talked about before, they then go directly to the Supreme Court, which is a little bit of a problem because federal courts basically don't review a state court lawsuit until there's been a, quote, final judgment, and in this case, while Yeshiva argued that there was a final judgment of sorts, this was really about the preliminary injunction aspect of it or the permanent injunction, but nevertheless, the merits had not actually really been litigated. So they go to the Supreme Court, and I'm not surprised given the emergency docket on steroids that has been the Supreme Court of the last few years. But this time the Supreme Court declined, although not unanimously

by any means. So it was a 5-4 with Justices Alito, Thomas, Gorsuch, and Barrett dissenting. The majority, by the way, I think it's worth noting, very short, it just said, basically, the applicants have two further avenues until we can say that it's been a final judgment. One, they can ask the New York courts to expedite consideration of the merits of their appeal. It says applicants do not assert, nor does the appellate division docket reveal, that they have ever requested such relief two applicants may file with the appellate division a corrected motion for permission to appeal that court's denial of a state the new york court of appeals as the appellate

division clerk's office directed applicants to do on augustth, applicants may also ask the appellate division to expedite consideration of that motion. So in real language, the Supreme Court's actually giving them a pretty good out to be back here in like a month, not very long. They're saying you can try option avenue number one and say we request expedited review by the end of the week. I mean, you can make it pretty expedited or we will go to avenue number two. If you don't hear from the courts by the end of the week, then you try avenue number two with the same thing, right? We request expedited review,

but with some very fast but reasonable amount of time. If they don't do it, then you go back to the Supreme Court and say, we're getting a pocket veto of sorts. This is a final judgment. Let's try again. It'll be interesting to see what they do at this point. Yeshiva is represented by the Beckett Fund, David, because it's a fine balance. You don't want to annoy any of the justices who think that you're playing games with this, not being serious when they told you to go back down and get that final judgment, especially in a 5-4 situation, meaning you need another vote. So that's what they're trying to figure out right now. Is expedited review two weeks that you give them,

one week that you give them, a month? What is it? What's reasonable? Yeah, and in the background, Yeshiva has halted all student club activities in the meantime. Which is, like, those were the two options. Either do recognize this group for a month or two, or however long it takes,

or recognize no student groups. And David, we've seen this so often in the flag at the Boston City Hall type stuff. Your choice is raise all the flags, have no more flags. And we've noted that in a lot of these situations, the result is just going to be no more flags. we've noted that in a lot of these situations, the result is just going to be no more flags. That will not be the case at Yeshiva. I think pretty much everyone agrees the law on this one is very, very clear and Yeshiva will win this. But again, process matters, whether it's the Texas bounty hunting law and Yeshiva ran into a process problem here. Yeah, and it's interesting to me, you know,

when you look at what's going on here, there's a broader context. Initially, the order requiring yeshiva to recognize the LGBT group was stayed by Sonia Sotomayor, okay? So Justice Sotomayor initially granted the stay, referred it to the whole court. The whole court, five to four, decided it wasn't procedurally ready. And then you go back to the dissent, and the dissent is sort of like, wait, wait, wait, wait. Are you kidding me? We all know what's going to happen here. You know, they very interestingly say at least four justices would be ready to grant review here under a different procedural posture. At least four, implying more than four. Everybody knows what's going to be happening here. Do we have to go through this sort of kabuki theater

of watching the state courts inevitably deny relief to yeshiva again uh now though if i'm a state court judge and i don't want to be reversed like i have any concern about not being reversed i'm going to read this opinion and say um basically reading the two things together uh yeshiva wins yeshiva wins it's just a matter of when do they win uh but the the four justices and the dissent here are basically saying look it's kabuki theater um we you can appeal from denied preliminary relief let's just go ahead and do this and get it over with and as you were saying sarah it's this really is a procedural case. There is zero indication. If I was representing LGBT groups, I would be telling my clients the following. The Supreme Court is going to rule against you. Period. End of discussion. want to keep playing this out, and you likely do want to keep playing this out, but you're going to lose your case. This is done. This is over. It's just a matter of timing. Because as you noted,

the really important part to me of the majority opinion was they gave them directions. Here is what you do to get back here. So as we said in the initial podcast about this, Yeshiva's winning, whether it's sort of five days or five years. I think that was on the way outside. And I think in this moment, it's more like whether it's in five days or five months, Yeshiva's winning this case. Interestingly interestingly there is some precedent for the supreme court taking up a case that is on that uh interim order and it's a 1977 case that some people may recognize the name of national socialist party of america versus village of skokie and if you haven't heard village of skokie like you don't live in illinois the only thing you're gonna know skokie. And if you haven't heard Village of Skokie, like you don't live in Illinois,

the only thing you're going to know Skokie for is yes, exactly what this case was. This was the neo-Nazi march in Skokie, Illinois, and the Supreme Court actually did grant the Nazis interim relief from a state court judgment in that. I think it's interesting that sort of a rational person would agree with the dissent that this is all theater, that obviously the New York courts are not going to change their mind. All the same courts that they're saying

they should go back to have already made a decision on this. Right. At the same time, I'm team majority because process matters. I'm team majority because process matters. And it's not that hard to go check all these boxes. That's often what law is. And yes, maybe it means that there aren't student groups for a month. That is undoubtedly a hardship. And by the way, unquestionably, they meet the factors for a stay. We've talked about stay factors before. Would prevail if review was granted, will suffer irreparable harm during the time it takes for completion of the appellate process, and neither

the interests of other parties nor those of the public militate in favor of denial, I think they meet all those standards here. But this isn't a federal case. It's a state case. And so you got to go get your bingo card all in order. And I think that, again, while sort of silly in some respects, they could have done that and ended up at the Supreme Court very shortly thereafter. I think what they didn't want is that pocket vetoing where the courts just sat on it for six months or longer. And I, you know, the Supreme Court saying that you can request expedited review and then come back is certainly helpful maybe in giving them some of that guidance, but they could have done that in the first place. Right, right.

Well, and for those who are wondering, wait a minute, hold on. I understand you, Sarah, in the abstract that process matters. But in the concrete, isn't the descent right? This is all Kabuki theater. Everybody knows what's going to happen. And so what, really, why? Well, there's some pretty important reasons for the what really why, which is if you're a Supreme Court and you have had a lot of shadow docket, there have been a lot of shadow docket cases,

there is an increasing tendency of litigants to seize on the expanded shadow docket, aim their litigation towards the shadow docket. If you then say, wait a minute, denial of very preliminary requests for relief in state courts can get you into a fast track, then I feel like a lot of the Supreme Court justices might have had an eye not so much on this case, but the next case, and the next case, and the next case. And if you're clearly sort of establishing another superhighway to the Supreme Court, that you're fundamentally sort of changing the nature of Supreme Court litigation, which is, again, one of the concerns about the shadow docket. And some of the justices are obviously wanting to put the brakes on all of that. And so that's, I think, one of the reasons why process matters.

If you're saying now very clearly, well, you've received a denial of preliminary relief and you believe your results are obvious, then here you go. I can understand why the justices are concerned about that. But again, Yeshiva is flat out winning this case. This is not one where you're going to worry at all about what kind of precedent is going to be set here on the substance. It's not a close. For me, the reason that you wait for that final order is out of respect and deference to state courts to say what state law is. The Supreme Court does not say what a state's law is. Again, please do not send me emails about Erie or other federal courts that do say what state law is.

And so you have to wait for that final decision so that you get sort of a state court on the merit saying what state law is before a federal court then says, well, federal law preempts, you know, is in tension with that state law and therefore preempts that state law and wins. is in tension with that state law and therefore preempts that state law and wins. The problem, David, is that that has, in the past at least, assumed that state courts will apply Supreme Court precedent as well. Be mindful. There's nothing prohibiting the state courts from saying that state law says X, but the First Amendment says Y, therefore state law loses. But we're going to get to more of that in the tech company case where the incentives for lower courts have so dramatically shifted with the end of the judicial filibuster and all those chickens feel like they're coming home to roost in the last even just year yeah and as i was saying like as i was articulating that if i'm a state court judge and i don't want to be reversed out loud i was

feeling why are you so naive what are you if a state court judge wants to become a federal judge, life tenure, full pension, all of the, I don't know, prestige and fun of being a federal judge, you no longer have the filibuster. And so you don't have to get votes from the other side. You have to basically get the votes from your side and prevent another applicant from

flanking you from your left or right. And so the result is, yeah, no, getting reversed is no longer, not only not just a bad thing, but probably a good thing. Yeah, it's on the resume. I stood up to the anti-gay bigots at the Supreme Court. This sort of defiance of existing precedent as a signal as to where you want the precedent to go, we've talked about this at length. It's like an audition to the Supreme Court or the next higher level, district court, circuit court, if your party gets into power, if a particular faction of your party gets into power. And how fascinating that in this podcast, we're going to look at, I think, that incentive effect on both sides, right? Here, we have liberal judges at the state appellate court level,

I think, setting out their case for potential federal judgeships to the left. And in the next case, we're going to see it on the right. Yeah. Yeah. Should we move to the next case? Sure. And what's also interesting is, by the way, both of these cases that we're talking about, we will be talking about again before the year is out. Yes, absolutely. So, Yeshiva, we'll see you soon. Yes, absolutely.

So, Yeshiva, we'll see you soon. Okay. So, Fifth Circuit, Fifth Circuit here. This is, I don't know, I'm trying to think of the best word to describe it, but I want to reread this provision, and I've come up with my word, okay? Okay. I'm going to reread what i began the the um the podcast with we reject the platform's efforts to reframe their censorship as speech it is undisputed that the platforms want to eliminate speech not promote or protect it and no amount of doctrinal gymnastics can turn the first amendment's protection for free speech

into protections for free censoring what the? That is absolute bonkers town wrong. All right, let's back up a little here. Okay. Sorry, did I get ahead of myself? Listeners will remember that both Texas and Florida passed similar but non-identical, quote, social media bills to try to prevent viewpoint discrimination on social media platforms of a certain size operating in their state. There were some other provisions in the Texas bill, especially on reporting, things like that. Let's actually not get to those today and just stick to the viewpoint discrimination part because, frankly, it's easier

to understand and more fun. And it's the majority of this 113 pages of opinion that we have. By the way, fun footnote. So we've been at the staff retreat for many days and I was in New York for a speech before that. So I have not been home for a long time. Got home late last night, have not talked to husband of the pod about this. And I was like, so? And he's like, you have your pod in the morning. Let's talk about it after. If you're wondering what it's like to have a podcaster,

a legal podcaster married to an advocate, the answer is you just get some cheese out, some wine out, and you go watch House of Dragons. We'll deal with it tomorrow. Did you watch it? Did you watch it? We did. I have not seen it because I'm waiting for my son to get home from a music festival he's going to, but what did you think? No, I'm not going to tell you any of that okay back to this okay so if you'll

remember uh the district court rules in favor of the tech companies then they argue in front of the fifth circuit and look that argument i think it was pretty clear where things were headed um it was a pretty hostile argument to husband of the pod, again, representing the tech companies. At one point, Judge Oldham, who ends up writing the majority opinion, unsurprisingly, asks, I'll get the quote slightly wrong, but does that mean that you think your platforms can remove pro-LGBTQ speech? And Scott says, yes, that's the law under Hurley. We'll get to that in a second. And the judge says, I find that remarkable that you would say such a thing. You know, Scott's like, I find it remarkable that you would not think such a thing under Hurley. That's literally what

the Hurley case is. It's about parade organizers, organizers not wanting a pro LGBTQ float in their parade. That's the Yeshiva case. Yeah. Yeah. Like literally we have this case, but, and so that's the argument. And then like really quick after the argument,

what was it a week, David? I mean, it was so fast. The fifth circuit lifts the injunction by the district court that had been in place and so you know tech companies are like wait a second if this Texas social media law is about to go into effect like yeshiva canceling all student groups in the interim I can only imagine that there were any number of sort of wild options on the table,

none of which were, oh, okay, we'll just stop moderating content. Yeah. By the way, a little piece of the Texas law that we've talked about previously is that it also says that you can't not operate in the state of Texas. Right. Whoa. It compels you to do business. Yeah.

Yeah. Anyway, so they go up to the Supreme Court on an emergency docket basis to put that injunction back into place, basically a stay back into place. The Supreme Court 5-4 grants it. Now, interestingly, in the dissent was also Justice Kagan. So you had Kavanaugh, the chief, Now, interestingly, in the dissent was also Justice Kagan.

So you had Kavanaugh, the chief. Breyer, Sotomayor. And Barrett in the majority. This is going to be very relevant as we keep going. Okay, so then the stay gets put back in place. Now, on a Friday, it was Friday, right? Yes. We get the Fifth circuit opinion that removes the stay again whoa up your supreme court which is kind of crazy like to your point about yeshiva

you know where the supreme court is and by the way while justice kagan didn't write i think we can assume that her point was on the emergency docket aspect of it, not the merits. And so in some sense, this was a 6-3 almost certainly on the merits. So it goes back to the Fifth Circuit and they're like, yeah, don't care. Again, why? I think the filibuster has a lot to do with it. Although, let me be clear, lest it sound like I'm saying that every judge on the Fifth Circuit is looking for that Supreme Court spot. Here we have Judge Oldham and Judge Jones, my former judge. Judge Jones is not going on the Supreme Court.

She was on the short list for any number of years, decades. But that is obviously not her concern. But anyway, David, we get 113 pages. You certainly read the relevant part. That part is repeated throughout the opinion, by the way, on speech versus censorship. But I do think it's worth talking about the part where they do grapple with the Supreme Court's precedent. And what's fascinating to me, David, is how easy it would have been, even back in the day, pre-filibuster reform, what this opinion would have looked like is,

I think what the tech companies are doing is awful. Here's all the ways in which it is terrible. I am bound by Supreme Court precedent. And so you would have made your opinion clear, but followed Supreme Court precedent. And that would have, everyone would have been like, aha, well, good judge following the law. Everyone has something to point to in this. And that would have been the end of it.

You don't really see that anymore of judges sort of expressing their policy disapproval or even legal disapproval about where the law should be, that the Supreme Court should revisit their precedent. We saw that in one D.C. Circuit opinion over defamation law this past year from a retiring D.C. Circuit judge. But here we have, no, no, I'm just going to go through the Supreme Court precedent and distinguish everything. We've talked about these cases before, David, but it's really going to come down to, frankly, Pruneyard versus Hurley. Right. It really is. And so let's also back up just a little bit, and then we'll get into this

Pruneyard versus Hurley. You knew from the beginning what was coming here when you read this, which is actually a pretty good statement of people's misstatements about social media. And this is in the very opening. What's worse, the platforms argue that a business can acquire a dominant market position by holding itself out as open to everyone, as open to everyone as Twitter did by championing itself as the, quote, free speech wing of the free speech party. Then by championing itself as the quote free speech wing of the free speech party then having cemented itself as the monopolist of the modern public square twitter unapologetically argues that it could turn around and ban all pro-lgbt speech for no other reason than its employees want to pick on members of that community and then there's

the oral argument reference there sarah um there's two big problems there, although this is exactly what you see in all kinds of rhetoric about social media companies. One, Twitter has terms of service. It's not actually holding itself out as open to everyone unconditionally. It holds itself out open to everyone upon certain conditions, complying with the terms of service. And then it is not a monopolist by any possible definition of monopoly. It's the 15th largest social media company. Pinterest is bigger. It is not a monopoly. So you have, it is not open to everyone unconditionally, and it is not a monopoly.

But other than that, the statement is fine. But moving on to your Hurley versus Pruneyard discussion, this is something that's really important because the question really is, how viable is Pruneyard post Hurley? So Pruneyard was the case that was decided in 1980. And in 1980, the question was, can a mall, did it violate the First Amendment for California law to permit students or anyone to pamphlet, to leaflet in a mall owned by a private company. And the Supreme Court said that it did not violate the rights or it did not violate the constitutional rights of the privately owned shopping center to allow students to, or to require them to allow students to pamphlet in opposition to United Nations resolution against Zionism. That was what they were wanting to do. So this is in 1980. Hurley was in 1995. And the question was, were parade organizers required to permit the Irish American

gay, lesbian, and bisexual group of Boston to participate in the parade? And in that case, in Hurley, the Supreme Court said, no, Boston, the parade organizers are not required to include an Irish American gay, lesbian, and bisexual group. And we have long talked, Sarah, that Pruneyard would not likely be decided the same way now, that precedent post-Pruneyard has rendered Pruneyard essentially zombie precedent. The Fifth Circuit comes along and says, nope, nope, Pruneyard is more front and center, and these other cases have to sort of be harmonized and read as distinguishable and subordinate to Pruneyard. And I think that just gets everything exactly backwards.

So let me give Judge Oldham and the majority's viewpoint on this, because I think it's Judge Oldham and the majority's viewpoint on this, because I think it's important and interesting and well-written. So he says, the tech companies here turn to the Hurley case. The platforms contend that the law forces them to host speech that's inconsistent with their corporate values, quote unquote. But of course, the platforms do not contend that they carefully curate user speech the way a parade sponsor or composer selects expressive units from potential participants, nor do they suggest that they are intimately connected with the communication. The platforms instead contend that their censorship is protected because Hurley creates a freewheeling right for speech hosts to discriminate against messages they don't like. Hurley said nothing of

the sort. The court instead carefully limited its holding to a speech host, like a parade organizer or composer, who is intimately connected with the hosted speech, like a parade or a symphony. And the platforms are nothing like such hosts. They don't pick content to make some sort of collective point, even an abstract one, like what merits celebration on St. Patrick's Day. Rather, the platforms permit any user who agrees to their boilerplate terms of service to communicate on any topic at any time for any reason. And as noted above, virtually none of this content is meaningfully reviewed or edited in any way. David, what I find interesting here is that I absolutely agree that Hurley and Pruneyard are in direct tension with one another. One of them has to be more or less limited to their facts.

Yeah. And one of them has to have sort of principles that it stands for in the First Amendment context, or limit them both to their facts and find a new way. Here, you see over and over again, Judge Oldham limiting Hurley to its facts. A parade organizer or composer intimately connected with the hosted speech. Whereas Pruneyard isn't limited to a mall or a property owner. It's the one that has the larger principle about the speech that isn't really yours. And, you know, I think that that's a misreading of Supreme Court precedent, but I don't know that it's an unreasonable one to say these two cases are intention. I have to pick one to sort of say stands for a principle and I'm picking this one. And let me just run through his three independent reasons

for why the platforms lose. First, he says, and he's trying to make the point about the difference between speech versus conduct, which is something you'll see run through flag burning cases, for instance. What is speech versus what is conduct? The idea being speech is protected, conduct is not. First, the platforms have virtually unlimited space for speech. So the law's hosting requirement does nothing to prohibit the platform from saying what they want it to say. I.e., Twitter could put a banner at the top saying, we hate Republicans.

What they can't do is simply keep taking down Republican speech because they're Republicans. Two, the platforms are free to say whatever they want to distance themselves from the speech that they host. The Supreme Court has been very careful to limit forced affiliation claims by speech hosts. After all, any speech host could always object that its accommodation for speech might be confused for a coerced endorsement of it, but the court rejected that forced affiliation argument in Pruneyard. The shopping mall owner was not required to affirm the panphleteer's expression in any way and was free to publicly dissociate himself from the views of the speaker or the hand billers. Third, the law does not impose a content-based penalty on the platform speech. Recall that the right of reply law in Miami

Herald, this was a law that required if a newspaper takes a position on a candidate, that the candidate then gets to have like a letter to the editor in the newspaper and the Supreme Court said no because that basically retaliates for you talking about the candidate. I recall that the right of reply law in Miami Herald burdened newspapers with the duty to publish a response column if they published an article concerning the character or record of a political candidate. And that's not the case here. I think that those are reasonable arguments, David, to the contrary. I don't think they should have won out for obvious reasons because I think Hurley is very, very applicable

in a way that Pruneyard is not. But I think it's worth laying out those reasons because they're real and i also think that um if you focus on hurley and pruneyard you're you're really missing a broader scope because what ends up happening is post hurley there's an enormous there there's a a series of precedents and including cases pending uh before Supreme Court right now, where if you apply the Fifth Circuit's logic and reasoning to them, they're going to come out in ways that conservatives, especially religious conservatives, are really not going to like. They're really not going to like. So let's talk about some of those cases since Hurley. talk about some of those cases since Hurley. And again, a lot of these deal with, for example,

the right to exclude and the right to exclude because of the idea that if you have created an organization that is expressing certain kinds of values, that the ability to exclude voices can be just as important as what actual speech you're giving, right? So you have famously Boy Scouts of America versus Dale, where the Boy Scouts required to include gay scoutmasters, for example. And the Supreme Court held that no, the Boy Scouts of America were not required to include gay Scoutmasters. You have National Institute of Family Life Advocates versus Becerra. This is a case from 2018 where the question was, were pro-life pregnancy centers going to be required to include advertisements for free or low-cost abortions required and mandated by the state of California. And the Supreme Court said, no, you are not required to include advertisements

for free and low-cost abortions because that right to exclude a message was deemed inherently and inextricably part of their right to present a message. And even though, even though, in theory, to present a message. And even though, even though, in theory, the Boy Scouts could put out a statement that said, we believe in traditional sexual morality according to, you know, Judeo-Christian orthodoxy, even as they were being required to include a gay scoutmaster, or even though Nifla V. Becerra, the pro-life crisis pregnancy centers, were obviously still free to promote a pro-life crisis pregnancy centers were obviously still free to promote a pro-life message even as they were forced to include a pro-choice message. In those cases, the Supreme Court said no. Or think about 303 Creative, which is a case pending before the Supreme Court right now where you have a graphic designer who is being penalized because the graphic designer is not willing to design websites for same-sex weddings. Now, by designing websites for same-sex wedding, no one is stopping them from saying they disagree

in other places with same-sex marriage on religious grounds. And so, this idea that just grounds. And so this idea that there is not a real weight, like a heavy weight of precedent here that is saying that when you are an organization, your expression is both in what you say and what you don't say, I think is a really critical part of understanding free speech jurisprudence. And those folks who are really super mad at Twitter's inconsistent or hypocritical moderation policies, and many of Twitter's decisions, quite frankly, stump me and are often only explainable by the fact that they have double standards often, that you need to think long and hard about what you're thinking the First Amendment really is. Because if the idea is that the First Amendment does not prohibit the state from telling you what speech you must include in a speech platform, then that's a

big change in what we're thinking about the First Amendment. And that will radiate, that change will radiate outward into all kinds of aspects of American life. This isn't going to be just Twitter law, Sarah. It's not just going to be Twitter law. And so I think that's one thing that I think folks are not fully grappling with when they are often quite understandably angry or frustrated with any given social media platform's hypocrisy. But I think this is a little bit of a Rorschach test, right? Judge Oldham tells you how he sees the world at the beginning of this opinion. These are platforms censoring, and the question is, does the First Amendment protect censorship?

So I want to read another portion of the opinion. Accordingly, the platforms cannot invoke editorial discretion as if uttering some sort of First Amendment talisman to protect their censorship. Were it otherwise, the shopping mall in Pruneyard and law schools in Rumsfeld could have changed the outcome of those cases by simply asserting a desire to exercise editorial discretion over the speech in their forums. Instead, the platforms must show that the law either coerces them to speak or interferes with their speech. But of course, how the platforms do or don't exercise editorial discretion is relevant to this inquiry. But the course, how the platforms do or don't exercise editorial discretion is relevant

to this inquiry. But the platforms cannot just shout editorial discretion, he puts in quotes with an exclamation point, and declare victory. And there's a footnote there, footnote 16. I will admit that I read the footnote because I was curious whether we were going to have Michael Scott declaring bankruptcy reference. We were not. This is not Judge Oldham's style. But he's addressing something from the dissent here that I think is worthwhile. The dissent was Judge Southwick, by the way. Our esteemed colleague in dissent makes a similar argument with a different label. The dissent reads that Miami Herald case to protect two levels of publisher speech,

the published speech itself, as well as the selection process or publishing process used to choose that speech, and conclude that the law impermissibly interferes with the platform's publishing process. It's of course true that the right to speak generally entails the right to select what to speak, but asserting the law obstructs the platform's selection process begs the question whether the platform's censorship is protected speech at all. If it's not, then there's no First Amendment right for censors to select their targets, just as there's no First Amendment right for law schools to select their recruiters, no First Amendment right for shopping malls to select their pamphleteers,

and no First Amendment right for telephone companies to select which calls to drop. Again, David, if you just approach this by saying the question is whether the first amendment protects censorship you obviously don't see what hurley parade organizers did as censorship or miami herald as censorship yeah and so you start from this totally different premise and we're like living in two different worlds in terms of what's happening here. The idea that the First Amendment does not protect the right of a private organization to censor makes my head hurt, Sarah. Well, let me use one of Judge Oldham's, you know, he brought this up repeatedly in oral argument. Could Verizon listen in on all the phone calls and simply drop phone calls that were about topics

they didn't like? Set aside the common carrier stuff, because that's different than the First Amendment analysis. Under just a First Amendment analysis, can Verizon drop your call? Well, I think yes, absolutely. But there's a but there. And when you say set aside the common carrier analysis, that's like saying, I'm trying to look for the right analogy. It's a little bit Mrs. Lincoln in the play. I get it. Setting aside Frodo throwing to the ring into the cracks of Mount Doom

should Sauron have lost. I mean, setting aside the thing, then how does this come out? You don't get to do that. You don't get to like setting aside the thing then how does this come out uh that you don't get to do that you don't get to say setting aside the single most important distinguishing factor at issue here well then what then what but then that's why so many uh people including at least a a supreme court justice is curious about common carrier status for the tech companies themselves, that they're more like Verizon than they are like a newspaper. Yeah.

So that we've had that common carrier discussion. We have. Yeah. It's all built on itself, right? Like if you think these are a common carrier and you think it's censorship and you think it's like Verizon dropping calls, or do you think it's like a private organization,

whether a religious organization or a newspaper or anything else that's deciding what to publish? No, I agree that that's exactly how this debate has formed. And if you have experience in First Amendment, in the world of First Amendment free speech, you've seen this movie a lot at this point. So, and here's the way the movie works. The movie begins with outrage.

There is speech going on, speech activity I really don't like, and I want the government to intervene. Second act is, well, I'm sorry, the way free speech works is some people are going to do outrageous things that you don't like and say things and behave in ways that you don't like. And you're free to say you don't like it, but you can't stop them. You can't use the force of government. Then act three is, well, wait a minute, let's look at some existing ways that we can censor and see if we can stretch those to apply here. And so this is what you saw, for example, in the university speech

code context was, hey, there's a bunch of speech I don't like. Well, you can't censor it. Hmm, isn't there this doctrine called hostile environment discrimination? Can't we extend that to cover things that just offend people and make people mad on the basis of race or sex or sexual orientation. And then act four is the court going, no, you can't do that. And so what we've had here is a lot of the same thing. So it's, hey, Twitter's behaving terribly. Someone like me, I agree with you, but it's Twitter's decision. And then, well, what about a common carrier? Yeah, that's the ticket. But common carrier is a thing that has a definition that's related to the common

carriers themselves and the way that they were formed and the public assets that they use and the public resources they use and the way in which public power has been exerted to create the networks themselves, such example of eminent domain and rights of way and things like that, that put them in a completely different category vis-a-vis the government. And so therefore, calling them, just saying, yeah, they're a common carrier, is like saying, well, this table here, it's not a table anymore, it's a duck. well, this table here, it's not a table anymore. It's a duck. And now all regulations applicable to wildlife

are applicable to this duck, and don't you dare call it a table. So last point on the merits, and then I want to talk about where the case goes from here. There's a line in Judge Jones's concurrence that says this is a pro-speech, not an anti-free speech result. And I actually think that that is true if you see free speech as sort of the weight of speech on each side. Absolutely, the number of people's speech on a private platform that is being taken down, not promoted, whatever else,

if each one weighs one pound, it will weigh a lot more than each of these platforms and their speech, each weighing one pound. It's like five pounds versus, I don't know, 500,000 pounds, let's say. So there is a weightier free speech on the user side. But that's only if that's how you weigh free speech. So it's not that I actually think this isn't a pro-speech or an anti-speech result. It's that the First Amendment is an individual right, and it doesn't matter. If every single other person in the country doesn't like your speech, doesn't want you to have an individual right, and it doesn't matter if every single other person in the country doesn't like your speech, doesn't want you to have that speech right, or it somehow hurts their speech right. They have their speech right, and you have yours, and it's not up to sort of

that weighting analysis. And, you know, that's, I think think just a fundamental difference with the majority here but david i want to talk about what happens next okay and then i've got one more point and we can go to the masters so the tech companies have an interesting and by the way it's a trade organization that represents the affected tech companies that would be included as i said remember there's a size um minimum to be affected by the Texas law. So we're talking about a trade organization called NetChoice. Anyway, NetChoice has an interesting decision at this point because the mandate is, like the Fifth Circuit mandate is issued. So they will need to decide whether to go to the Supreme Court to seek

another stay from the Fifth Circuit's mandate and ask for that to be treated as their cert petition, for instance. Again, you have quite a few votes. You had the five votes you got the first time. You might even have Justice Kagan this time because you would be saying it's a cert petition. And we, of course, have switched the Breyer vote for the Justice Jackson vote. I don't think anyone's arguing that she will come out differently on this than Justice Breyer did, but that's at least a change worth noting. I'm curious whether Justice Kagan will see the emergency docket differently when it is a cert petition also. Right. So it's like expedited review almost more than it is emergency docket differently when it is a cert petition also. Right. So it's like expedited review almost

more than it is emergency docket. Or of course, there's the same thing that Yeshiva University ended up with, which is, nope, we're not helping you on an emergency basis, figure it out. And that's where the, you can't not run your platforms in the state of Texas gets pretty wild to me. Yes. I said I had one more point. I got a couple more, but quick hits. Okay. Okay.

So one is, and to be very clear, what we're really talking about here is whatever you want to say on these platforms, you can't be discriminated against on the basis of viewpoint. you want to say on these platforms, you can't be discriminated against on the basis of viewpoint. There's some very narrow carve-outs, for example, for true threats, illegal speech, for example, or well, if it's speech that's illegal, you don't really say the phrase illegal speech.

The expression that violates the law is the subject of a referral or request from an organization with the purpose of preventing the sexual exploitation of children and protecting survivors of sexual abuse from ongoing harassment. Let's be clear, though, about what this would mean. It would mean a lot more. Just brass tacks. You're going to talk about a lot more nudity in social media, a lot more, including blasting through a lot of social media platforms prohibitions against things like that.

You're also talking about the kinds of expression that you see on social media platforms like Gab, Getter, and others that have become unbelievable cesspools of white supremacy and anti-semitism and there are reasons and this is something that's that is moving into um a great piece i'm putting we'll put it in the show notes a great short piece by ilya somin and in the volet conspiracy on reason you're talking about about essentially the government coming in and saying, this is what kind of business you're going to have, regardless of if it's ultimately viable. So there's a reason why Gab or Getter and other places like that are not anywhere in the near neighborhood of Twitter. It's because a lot of normal, healthy, everyday average people would walk onto Gab and run away screaming from the place.

Because one of the things that we now know from long experience with the internet is in the absence of moderation, the speed at which platforms devolve towards just raw sewage is remarkably fast. And so there's just no consideration of the reality that, you know, completely unmoderated platforms on the bases that Texas allows them to moderate or, you know, with only those very, very narrow exceptions, we don't really have an example of that as sort of a viable social media, large-scale social media business viable. And that brings me to Ilya Somin's point in reason,

which is, is this a takings? Is this a commandeering of these private companies for a public purpose? And that, I think, is a really interesting question, especially when it comes to things, like Sarah said, about requiring them to do business in Texas. Are we getting into a takings? And does the takings clause get implicated here? So those are my last points. 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.

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I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off, plus free shipping on their best-selling frame. That's a-u-r-a-frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. And we still got one more case to go. Oh, we do. Do you want to lead us, walk us through that one, Sarah? So the government, remember, asked for clarification from the special master order from the district judge in Florida about those Mar-a-Lago documents that were taken. So basically, the judge has said, A, here's the special master.

It's the one that the parties agreed on that was from the Trump list. It's a judge from the Eastern District of New York. Two, no, not much clarification. For instance, says that the 100 or so documents that were marked classified are not going to be treated separately. As in, the Department of Justice cannot keep those documents, keep reviewing and using those documents because basically it presumes that they are classified. It was a little bit confusing there.

Um, two, though, she says, you can't use the contents of any of the seized documents to continue the investigation, but you can use their existence, like not what's written in them, but like the pieces of paper and presumably the classification markings on the pieces of paper, as long as you don't look at the contents of them any further or use the contents of them. Woof, man. Woof. Yeah. Back when I was at NR early in the Trump era, I coined a term called Trump law. And what Trump law was at the time, an extraordinary standard applied to Trump's enactments by a lot of progressive judges, where there was an expansion, for example, of the nationwide injunction concept. additional layer of suspicion attached to or an additional layer of scrutiny attached to Trump enactments because they were Trump enactments. And I sort of called that Trump law. Well, there's a reverse of that as well, which is a really special degree of privilege applied

to the private citizen named Donald Trump. And that's what the special master opinion, Donald Trump. And that's what the special master opinion, there is all kinds. Sarah, could you imagine how many criminal defense attorneys would look at this opinion and say, wouldn't it be nice, wouldn't it be great if we could halt federal criminal, the use of documents seized in in a federal criminal investigation pending appointment of a special master based on really unsubstantiated assertions so the declassification assertion for example right is not a substantiated assertion it's a speculation it might be declassified normally if you're a criminal defense attorney and you'd say it's declassified, you would come in and you'd cite chapter and verse. Here is the procedural, here is the piece of paper from the president of the United States declassifying this document. Here's the evidence that went through the declassification process. This is a declassified document.

Instead, it's like, it could have been declassified. So here's the line from the judge's That could have been declassified. So here's the line from the judge's opinion. In many respects, the government's position thus presupposes the content designation and associated interest in materials under its control. Yet, as the party's competing filings reveal, there are disputes as the proper designation of the seized materials, the legal implications flowing from those designations, and the intersecting bodies of law permeating those designations. Punt. Under these circumstances, the court declines to conduct a subset-by-subset piecemeal analysis of the seized property.

This is about separating out those 100 classified documents. The problem with that is that's not what the special master is going to do for you. The special master can only tell you these documents are marked classified. Exactly. They can't tell you about the competing filings, the legal implications, or the intersecting bodies of law permeating those designations. They're not acting as a judge. They're literally there to sort things into piles. Here are these piles, and this pile is going to be documents marked classified. Yeah. It's all weird because if you're, and again, in a normal case where classification

was a key issue, what you would be saying is within the inventory, and you might have a sealed filing, it says within the inventory taken are documents A, B, C, and D that were declassified by order, number, blah, blah, on date, date, date, and then documents F, G, H that were declassified on such and such date by such and such order. But that's not what's happening here at all. It's there were all these documents that were in Trump's possession for a long time, by the way. And they're just sort of saying, ah, it might be declassified, which is the only way that's consistent with any sort of legal argument is the legal argument that says you can declassify something through the power of your mind. And we haven't been able to yet peer into Donald Trump's mind yet to see what

he mentally declassified before he left office. And that's just not serious. So this is going to go to the 11th circuit now. Yep. And again, all three of these cases, we'll see you again really soon. I would say, David, that we see all three of these cases again before Thanksgiving. All three. Three for three. I'm with you on that. Three for three before Thanksgiving. And you know what?

Now that we're through Nerd August and we're halfway through post-Nerd September, we're heading towards one of our favorite times of the year, oral argument fall. It's true. Long conference is next week. Red Mass, what, a week from two weeks from Sunday? A week from last Sunday? Yeah. We're about to kick things off here in short order come October. Yeah. This is a fun time. I'll talk in more detail about Long Conference, by the way, next week when we actually get to Long Conference

and what all that means and what it is and why it's called Long Conference. But David, before we go, today that we are recording this is the Queen's funeral. Yes. Here's the most important thing that I've learned today. The Queen's corgis, Mewick and Sandy, were obviously in attendance at Windsor Castle. The dogs will be cared for by Prince Andrew

and his former wife, Sarah, the Duchess of York. So a couple of things here, David. One, King Charles III has rejected the corgis? What? The corgis have to leave their home in windsor castle what is this is he allergic um i think that's insane that the corgis do not stay in the line of succession and don't get to stay in their home second i'm confused how divorced people are going to take care of the dogs together how let's can can we you know, let's remember some history.

King Charles I's abuse of power led to the English Civil War. Uh-huh. King Charles III's abuse of the Corgis? Well, that's a little strong. Mistreatment. Disrespect. Let's say disrespect to the Corgis. I think it's disrespectful to force the Corgis to move out of their home, the only home they've ever known.

I mean, mind you, they've known like 10 homes, but all 10 of those homes they have to move out of. Yeah, I'm telling you. Disrespect to the Corgis is a real issue. A real issue. The picture that they have of them awaiting the casket's arrival, they do not look like they're in mourning. They just look so freaking adorable. Yeah. So speaking of the queen, and we'll put this in show notes as well. Last Sunday, I broke like 110 weeks streak and I didn't have a Sunday French press.

Yes. Which gave me the shakes, as you know, because we were at the dispatch staff retreat and I had violent tremors. But two weeks ago, I wrote about the Queen and I pointed to this incredible tribute by Andrew Sullivan. And it was so good, I almost sent it out and just said, here's my Sunday newsletter. I'm on vacation, read Andrew Sullivan's tribute to Queen Elizabeth II. But I want to highlight two things that he wrote. He says, you can make all sorts of solid arguments against a constitutional monarchy, but the point of a monarchy is precisely that it's not the fruit of an argument. It's emphatically not an enlightenment

institution. It's a primordial institution smuggled into a democratic system. It has nothing to do with merit and logic and everything to do with authority and mystery. Too deeply human needs our modern world has trouble satisfying without danger. And then he goes on to say, the crown represents something from the ancient past, a logically indefensible, but emotionally salient symbol of something called a nation, something that gives its members meaning and happiness. And as I was reading that, I thought, that's wonderfully and marvelously put about how a virtuous person in that pre-enlightenment institution can really be an asset to a nation, and how a terrible person in that pre-enlightenment institution can be

really terrible for a nation. And it really highlighted what a faithful, virtuous person Queen Elizabeth was. And it's the unique character of the person of Queen Elizabeth, I think, that rendered us a long time before we're able to fully understand all the ways, all that she meant to the nation of Great Britain as a result. And you may remember her a lot more than the vast majority of the 15 prime ministers, 15, that she served alongside. And then the last thing, Sarah, if you're not on Twitter and you haven't gone to the dispatch.com homepage, which you should every day, today is the first day of a new colleague,

Kevin Williamson, who's joined us from National Review and we're really excited about it. And the first day also of another new colleague who has gone by, you call it the nom de guerre, the... Oh, that was embarrassing. How about that?

Yeah, there we go. Of all abundant, Nick, Nick, also his first day. And so the dispatch, as we saw from our staff retreat, where there were so many more people than the six folks who were in an AEI conference room before our launch. We're growing and we're really excited about it. So if you want to support us, go to thedispatch.com and become a member. And in the meantime, also please go rate us wherever you get your podcasts.

Please subscribe wherever you get your podcasts. And we will be back Thursday. We're back on regular order. So we'll be back on Thursday.