Strict Scrutiny - Content Moderation, Machine Guns, and Trump's Trial Calendar

Episode Date: March 4, 2024

Leah and Kate analyze the ramifications of the Supreme Court agreeing to hear Trump's immunity case... seven whole weeks from now. They also recap the arguments in a case about whether the federal government can ban bump stocks, a device that turns a semi-automatic rifle into, essentially, a machine gun. Plus, evelyn douek joins the pod to recap arguments in a case about whether social media content moderation is censorship and therefore violates the First Amendment. Listen to evelyn's podcast, Moderated Content Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our legs. Welcome to a special expedited episode of Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. And by expedited episode, we mean it is not really so expedited at all, just a normal episode. We are your hosts for today. I'm Kate Shaw. And I'm Mia Lippman. Melissa is unfortunately out trying to locate Kate Middleton. That's a joke.

Melissa is traveling. And the fact that she's not here means she can't stop us from putting in an extra emphatic plea to get her book, the Trump indictments, the historic charging documents with commentary. So you can read all about the charges and indictments that the Supreme Court will not let go to trial. Right. Go see what it is they're trying to prevent the American people from ever hearing to prevent a jury from ever deciding on, but we're getting ahead of ourselves. Go buy Melissa's book in the meantime. Okay, so here is a roadmap for the episode. As is probably clear, we are going to first talk about how the Supreme Court decided to get involved in the federal election interference case arising out of January 6th.

We will then move to recaps of cases the court heard last week, including a couple of really important social media cases, cases about whether government can ban platforms from engaging in content moderation. And for that conversation, we will be joined by the great Evelyn Dueck. We will also recap a case about whether the federal government can lawfully restrict bump stocks, that is devices that convert semi-automatic rifles into essentially machine guns, which can fire hundreds of bullets with a single motion. And we will then have a court culture segment in which we'll talk about the latest insanity, but also, surprisingly, some sanity out of district courts in Texas. So there's a lot to cover. Let's get right to it.

And first up is presidential immunity. The Supreme Court acted on Trump's immunity claim and did democracy kind of dirty. So it's only March, although technically the relevant order came in February, but it is already time for some bad decisions. Sam Alito and the Supreme Court are in their dangerous woman era, and democracy, you and everyone else are in danger, girl. Yep. So listeners will recall that the D.C. Circuit rejected Trump's outlandish immunity claims last month in the federal case arising out of the events of January 6th. So after losing big unanimously before the D.C. Circuit, Trump went to the Supreme Court asking for a stay of the D.C. Circuit's ruling in order to allow him to seek both Supreme Court review and on-bank review in the D.C. Circuit, which would have resulted in considerable delays in

the proceedings. The special counsel, by contrast, urged the court first and primarily to deny Trump's stay application. But if that wasn't going to happen, the special counsel asked the court to treat Trump's filing as a request for certiorari and to grant review and set the case for argument in March so that a trial could still happen before the election. And after pretty inexcusably, in my view, sitting on the papers for almost two weeks, the Supreme Court granted certiorari and noted that it, quote, expedited the case for scheduling argument almost two months later at the end of April. So this next part is potentially important. The court also directed the Court of Appeals to withhold the Court of Appeals mandate until a Supreme Court ruling and, quote, sending down of judgment, end quote. Withholding the Court of Appeals mandate means the trial court doesn't get the case back, meaning trial proceedings cannot resume until there's a Supreme Court decision and possibly until the Supreme Court sends a physical copy of that

decision to the lower courts, which the Supreme Court's rules say would happen within 30 days after a decision in the case. Now, as to that last piece, the sending down of the order, I think the court can send that order down faster if it wants to. It has done so in the past. But I think the larger point, which is, of course, correct, is that the decision to set the case for argument seven weeks from now definitely means significant additional delay, which is an enormous victory for Trump. Right. And one of the things that is the most baffling here is that it took weeks to issue this order. And I think no one was shocked at the bottom line decision by the court that they did want to have the last word on this presidential

immunity question rather than just let the D.C. Circuit's opinion stand. But I think with the passage of time, a lot of people came to believe maybe they actually were just going to let the D.C. Circuit opinion stand because if they were planning to hear the case, why not move immediately to do that? And why not move immediately to do that in light of some of their much more expeditious treatment of similar, in many ways, asks of the court? So compare this two-week delay and then seven weeks to oral arguments with what the court did in the Colorado case about disqualification. So there, the cert petition was filed on January 3rd. The Supreme Court granted the case on January 5th. The case was scheduled for argument one month later. Dial the clock back a little further, and you have even more striking examples. Bush

versus Gore took them days to grant, right? The Florida Supreme Court decision was December 8th. This is back in 2000. They granted on the 9th, arguments on the 11th, the opinion on the 12th, right? It's not a recipe necessarily for the most enduring judicial craftsmanship, but it's possible for them to move expeditiously when they think the national condition requires it. And it is very clear that they have decided that's not the case here. They said the argument won't happen until the week of April 22nd, which means there won't be a decision until early May at the very earliest. And to game this out in terms of what it means for a trial, the bottom line is that this decision to wait for two weeks and then schedule arguments seven weeks from now makes it pretty unlikely that

there will be a trial before voting in the election starts and may mean that there is no trial before the end of the summer and potentially no trial at all before the election. And again, just to explain the details, you know, after the argument, the court will have to issue a decision, right? That's going to take at least a week. Then they have to actually physically deliver a copy of their opinion to send the judgment down. The ordinary rules say that's going to happen within 32 days. Could happen more quickly. I don't know. Judge Chutkin said 80 some days will be required for trial preparation. It's possible she would shorten this as well, but that's also unclear. So if you add that up, 30 days after an opinion plus 80, that's already 110 days. So if the court releases its opinion at the end of June, that means no trial before the beginning of November. If it's

release end of May, no trial before the beginning of October, and then the trial will happen. And who knows when there will be a verdict because Trump's defense team might call a bunch of witnesses and try to drag out proceedings. Yeah. So the beginning of the trial obviously doesn't tell us when things get to a jury. So the clock, the calendar, the math here is all really, really hard for the prosecution and very advantageous to Donald Trump in particular, given his demonstrated willingness to delay proceedings. And in some ways, the kind of calendar math that Leah just walked through is the best case scenario. There are worse scenarios that involve a decision out of the Supreme Court that announce maybe some kind of legal standard about presidential immunity that isn't categorical,

that requires Judge Chutkan and the district court to make additional determinations before proceeding with the case. The court's modified question presented says they are interested in the scope, if any, of immunity arising from official acts. The order specifically says, and I'll quote, whether and if so, to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office. So the D.C. Circuit had, I think, the best reading of their opinion assumed that Trump's actions were official acts, but then it also said it wasn't really deciding whether, quote, executive immunity, if it applied here, would encompass his expansive definition of official

acts, end quote. So again, it's possible that something that the Supreme Court says would require additional determination by the trial court about whether things fell within the scope of official acts or actions as defined by the Supreme Court in this opinion. So that's a potential source of delay as well. Yeah, and then if that's the case, with another round of briefing and decisions in the lower courts, then any prospect of a trial before the election is decisively eliminated. Okay, so back to the big picture. The Supreme Court didn't give

Trump everything that he asked for. He had asked the court to hold the case until next term. But they also didn't do what the special counsel asked for by way of a briefing schedule if they were going to take the case up. And the special counsel's briefing schedule would have much more obviously facilitated a possible trial this summer. And remember that the court did not take this issue up when Jack Smith asked them to before the D.C. Circuit had weighed in, even though this very term they put an environmental law case on their docket about whether to block a rule before the D.C. Circuit has even weighed in on whether the rule is lawful. And in other previous cases, the court has been all too

willing to leapfrog courts of appeals decisions. And in other previous cases, the court has been all too willing to leapfrog courts of appeals decisions. And one especially egregious example of this is the eviction moratorium case, where the Supreme Court vacated a district court stay of a decision invalidating the moratorium on evictions while an appeal was pending. So they were willing to reach down to a district court in order to protect landlords, but not to protect the possibility of a trial about the potential guilt of a presidential candidate for the most grave of political crimes of literally trying to steal a presidential election. I actually think there are a bunch of really egregious examples. And another one that I would put on the table is the case of Dustin Higgs. So this

was one of the Capitol cases where the Supreme Court vacated a stay of execution to allow the Trump administration to execute people who were convicted of federal crimes during the waning days of the administration. And there are two aspects of this case that I think make it especially relevant here. One is that the government, the Trump administration, sought certiorari before judgment, right, before a court of appeals had weighed in. And the Supreme Court said, yeah, we're willing to leapfrog the court of appeals. And they did so, right, the only reason, right, to hurry up is because of timing, because the Trump administration was on the way out. So unless they acted quickly, right, the Biden administration was going to come in and Joe Biden had announced

he was not going to carry out the federal death penalty. And so, again, like they are willing to modify their procedures, modify the timing in some cases, and they just made the calculus here that it wasn't worth it to do is Mitch McConnell might not be the worst in the Republican coalition, but he played the biggest role in enabling the worst and facilitating the worst. And even though, again, the court didn't do the worst thing here, what they are doing is enabling someone who is a huge threat to democracy and making it possible for him to gain power, just like Mitch McConnell did. Yeah. I'm so glad you brought up that Higgs example. I had forgotten about that. It is like the pressing need for speed in the court's mind was the need to let the Trump administration execute this person before the change in administrations.

And here the pressing need, even putting aside what they think of January 6th and Donald Trump, just the pressing need to have a trial and let a jury decide so American voters, supporters, and opponents can know what a jury made of these charges before the election. It just seems like so obviously oppressing national interest. And they are just proceeding as though, you know, they're saying expedited. We're calling it expedited. Just as we did at the outset of our episode. And that's essentially all the urgency they can seem to muster. Yeah. Orwellian, you might even say. The court is content moderating Jack Smith's prosecution, you also might say.

You might say that. In any event, so it really does look as though they're running out the clock for Trump on the election interference case. And it's an enormous gift to Donald Trump that this additional delay has been introduced. And it's also hard to square this with the court's seeming concern about consequences in the Colorado case involving Trump and his appearance on the Colorado ballot, right? Again, we heard ad nauseum in that argument about how if Colorado could disqualify Trump, that would have all these negative consequences in terms of allowing other states to make disqualification decisions

and it would destabilize our entire election apparatus. And, you know, if they're intent on owning the consequences of their rulings, then I think they need to own the consequences. And that here, the consequence is the delay in a trial and the possibility of elimination of a trial before the election. And, you know, again,

I don't want to repeat myself, but even though a trial sort of feels like an abstraction, we are literally just talking about giving a jury and the American people the chance to know whether Trump is guilty of trying to unlawfully remain in power after losing a presidential election, which seems like a relevant piece of information as he is seeking to again win a presidential election. And yet I'm not sure we're going to ever see a verdict in this case. No. And to be clear, the Supreme Court is not the only one to blame here, right? Like the Attorney General Merrick Garland took years to appoint a special counsel, meaning

indictments didn't come for several years until after January 6th, really only when Congress had forced their hand, right, with the January 6th hearings. And I think, honestly, part of where the attorney general, you know, went wrong is not recognizing the Supreme Court and maybe the courts in general for what they were and were likely to do, not anticipating that they would, right, if given the opportunity, give this delay and create the possibility of letting Trump, you know, roll out the clock. Yeah. So can I ask, we leave this topic? So we've talked about the seven weeks until the argument. What about the two weeks? Like, do you have theories for what caused this delay if they were going to take the case, why they didn't just take it two days later, like the Colorado case?

You know, I think there are some reasonable explanations and then some more concerning ones. And I think the reasonable explanations are it's in like somewhat of a complicated posture where you have a stay application from a party who's not seeking certiorari and then the party responding says treat it as an application for certiorari so there's probably got to be some interim discussions among the justices about should we treat this as a stay application when the party seeking the stay didn't seek cert and if we are granting certiorari what do we do with the stay application what do we need to do to modify like the dcC. Circuit's mandate and the briefing schedule? So there are some things to sort out.

I don't think it's two weeks of things to sort out. Instead, I think like probably what happened is there were a fair number of justices who wanted to give Trump everything he wanted. And that was their initial position, whereas other justices wanted to do something more reasonable. And so there was a negotiation. And what results is a negotiation. And what results is a compromise. And some people have asked about the logistics for how this might have happened.

There aren't clear rules, but a few parameters seem worth reminding listeners. So granting the stay that is just like keeping on hold the D.C. Circuit's decision indefinitely until Trump's further review, that would have required five votes. Granting cert requires four votes, right? So it's possible some justices wanted to stay, but there weren't five votes and at least four granted cert teeing up these discussions about scheduling. And there really isn't a specific procedure for how to handle that, the scheduling. The chief takes the lead, but what goes on from there is just less clear. Yeah. And if it's the chief taking a lead and it's face-eating leopards that he needs to try to corral, maybe it just takes two weeks to actually get to.

Or democracy-eating leopards, right, as the case may be. That's right. Yeah, but, you know, just worth underscoring again, like, nobody is coming to save us and this democracy, and the court has made clear it will get in the way. And that it is a huge problem for democracy, and that, unfortunately, just needs to be baked into people's decisions about what to do in the political system right now. Yeah. heard argued last week, which are about whether the court is going to mess up social media and also whether it might intervene to undo one of the small pockets of federal gun control that still exists. Last week, the court heard arguments in the Net Choice cases, that's shorthand for a pair of cases challenging a pair of laws, one out of Texas, one out of Florida, that regulate

social media platforms by prohibiting certain forms of content moderation. Put differently, these laws force social media platforms to host speech, even speech they find destructive or possibly dangerous. Now, as listeners have probably noticed, there has been a firehose of legal news in recent weeks, so we actually haven't had a chance to do any kind of in-depth previewing of these cases, and so we're going to spend a good amount of time on them here. And to help us sort through these cases and the issues that they raise, we are delighted to be joined by law and technology scholar Evelyn Dueck, an assistant professor of law at Stanford Law School and a terrific thinker and writer on all the issues these cases raise. Welcome to the show,

Evelyn. Thanks so much for having me. Long time, first time. It's a real pleasure. We should also note that Evelyn hosts their own podcast, Moderated Content, which we can only assume, Evelyn, is about Eugene Debs and how the government threw labor organizers and draft abductors in jail, since that's what content moderation means. That's right. It's a deep history of the history of content moderation in the United States from the founding to the present. That's our coverage. Alien and sedition acts, right? Basically content moderation. So more seriously, Evelyn, don't worry, listeners, this inside joke will become more clear once you hear Sam Alito's pleasant voice. What do the challenge laws in these cases do and how could they potentially change social

media? Yeah, great. So, I mean, one thing that became clear during the oral argument on Monday is that apparently no one really knows what the laws do in their actual operation, because these were pre-enforcement facial challenges to the laws, which I'm sure we'll talk about. They haven't gone into effect. No state court has interpreted their provisions. And they are, shall we say, not the most carefully drafted laws. So a lot of Monday was spent guessing out exactly how these laws would operate

and who they would even apply to was a big question that kept coming up. But at a high level, as Kate said, the states weren't shy about saying that the purpose of these laws was to prevent platforms from doing some of the forms of content moderation that they currently do. And they each do this slightly differently. So Florida's law prevents social media platforms from moderating any content posted by a journalistic enterprise or content by or about a candidate for public office, three guesses who they were thinking about when they wrote that provision.

And they also, they also, Florida would also require platforms to do content moderation in a quote-unquote consistent manner. And Texas's law essentially says that platforms can't engage in viewpoint discrimination when they moderate their users or their users' content. As the Fifth Circuit put it, basically, Florida's law prohibits all moderation of some speakers, while Texas's law prohibits some moderation of all speakers. So in theory, what the states suggested that the laws would do is something like if a platform is going to allow pro-vaccine speech, it also has to allow anti-vax speech.

Or if they are boosting pro-choice speech, they better also be boosting pro-life views. That's the sort of theoretical application. But, you know, one of the things that came up in oral argument on Monday, too, is that, you know, this is the real world and it's not actually clear that these laws would result in platforms allowing a lot more speech if they went into effect. Because some of the content that they take down is so distasteful to their users and, more importantly, to their advertisers. For example, if we're talking about, you know, content from ISIS and terrorist content, things like that, that advertisers just don't want their ads appearing alongside. Platforms, their answer might be, well, we're just not going to allow anyone to talk about terrorist content at all, whether they're being, you know, arguing for or against,

and they'll take down the entire subject matter. Or as NetChoice's lawyer, Paul Clement, suggested, we might say, let's do only puppy dogs in Florida, at least until we can get this straightened out. That's called Instagram. Your Instagram's a lot more, I guess, friendly than mine. It's a dogstagram. Leah has the most wholesome Instagram feed of anyone we've ever met. I think about that for two seconds and now it makes a lot of sense, actually. Stevie's feed, Stevie Nicks' feed is very pure. But most of the time, that's not actually what a feed on social media looks like. And that was the sort of potential end result that

Paul Clement, one of the lawyers for the challengers, suggested would follow from allowing these laws to take effect, that essentially it'd be intolerable to be required to host this like so-called balanced speech. And, you know, another example that Clement gave that I thought helpfully illustrates the problem. ISIS is obviously a good one too, but it would require platforms that hosted suicide prevention content to also host suicide advocacy. I mean, these would be intolerable things for platforms to do. And so what Clement suggested was it might just lead to the end of any useful version of a social media platform if platforms had to comply with these laws. So that's about kind of practical consequences. Let's take a step back, though, and talk just kind of generally, like, what are the constitutional arguments that Paul Clement,

the platforms in general, are making against the permissibility of these laws? Yeah. So the platform's essential argument is that content moderation is a First Amendment protected activity. So it's just like the editorial choices that newspapers make when they decide what goes into their products. That's all the platforms are doing. When platforms write and enforce their rules, they are speaking for the purposes of the First Amendment. So when they choose what material to allow on their sites or when they arrange and rank that material in users' newsfeed to highlight some stuff over others, all of those choices are expressing their values and the kind of content that they want to

be associated with and that that's a right protected by the First Amendment. This is the kind of decision that newspapers and bookstores make all the time when they're choosing what content to serve their customers and that there's a long line of First Amendment precedents protecting these kinds of entities when they curate, arrange, and present other people's speech to audiences. The reason why people get so worked up and angry at platforms for their content moderation choices is precisely because they understand them to be expressing a viewpoint and making a value judgment when they make those choices. And specifically as to whether the platforms are actually expressing a view, you know,

through content moderation, I thought Justice Kagan illustrated with a real-world example how content moderation and algorithms really does affect the product on social media, that is, feeds that people see, hear, and read. So let's play that clip here. This is a real-world example. Twitter users one day woke up and found themselves to be ex-users. And the content rules had changed, and their feeds changed. And all of a sudden, they were getting a different online newspaper, so to speak, in a metaphorical sense, every morning. So I think that does drive home, if it all seems kind of abstract, if you've used Twitter,

X, or other platforms, like maybe it does kind of start to land why it does matter that there be some degree of editorial control. So I guess, Evelyn, maybe will you also walk through why the states say these laws are constitutional? And maybe just to take a beat on the kind of political valence, which, you know, you alluded to the kicking Donald Trump off of Facebook and Twitter was the impetus for these laws. But they also seem to be somewhat animated by what they perceive as over-policing to eliminate anti-vax or election denialism. So it is obviously these are red states that have enacted these laws. And so maybe this goes without saying,

but that's essentially the political backdrop. But of course, that's not precisely the arguments that the states are making in the Supreme Court in defense of their laws. So what are they saying about why these laws are permissible? Yeah, so the states both argue essentially that this is conduct, not speech. There's nothing to see here, First Amendment. Let's move on. Thank you. Nothing to see here. They essentially say like platforms are much more like telephones or mail carriers, that they facilitate people's communication, but they aren't themselves speaking when they host and distribute content. So because they're not speaking, their business activities can be regulated just like any other normal business activity, and they can be subject to anti-discrimination norms that, you know, we don't want businesses discriminating based on viewpoint. And so, you know, one of the

things that's really interesting about this case to note here is that both sides are really claiming the mantle of free speech. Like this is not like there's one pro free speech side of one anti speech like, oh, we need to suppress the speech side. Both sides come in and say we are here in the interest of free expression. And so the platforms position themselves as the speakers and say we deserve protection under the First Amendment from state interference. And, you know, if the First Amendment means anything, it means protection from the government. And the states instead position themselves as the champion of free speech, but for the users, for the people who use the social media platforms who are, in their view, being censored by the platforms. So we'll try to,

you know, sort out these kind of competing free speech claims in a second and how the court, you know, received them. But just quickly by way of procedural history, the Court of Appeals for the 11th Circuit, you know, struck down the Florida law, concluding it could not be enforced. The Fifth Circuit upheld the Texas law because, of course, and then in 2022, a divided Supreme Court stayed that Fifth Circuit decision, which had the effect of preventing the Texas law from going into effect. The Supreme Court's decision had an odd breakdown with the Chief Justice, Justice Kavanaugh, Justice Barrett voting with then-Justice Breyer and Justice Sotomayor to stay the law. And that's, of course, some indication about where at least some of the justices might have been leaning going into the argument. So with that kind of backdrop,

Evelyn, you know, any high-level reactions to the argument you came away from? We'll obviously go into some of the more specific details later. Yeah, I mean, the arguments were way more interesting than I anticipated, honestly. So from what I've said so far and what you just said, you might have gathered that the parties came in with these really extreme positions, right? And the two lower courts, the circuit split, staked out those two extreme positions as well. On the one hand, eitheraked out those two extreme positions as well. On the one hand, either platforms can pretty much never be regulated, according to the platforms themselves in the 11th Circuit, or they can always be regulated just like any other business, according to the states in the Fifth Circuit. And there wasn't a lot of nuanced conversation about the vast, vast space in between those two positions. But a significant number of justices seemed very interested

in that vast, vast space between those two positions and didn't seem to want to take such an extreme stance, particularly, you know, in this early position with this sort of facial challenge without knowing what the laws do and without knowing all of the facts of how they might apply. And were looking to proceed more cautiously and to try and find a middle road through the thicket. And I think there was, you know, this real appreciation,

not from everyone, but from enough justices, that this stuff is really tricky and important and that we might want to take things slowly and not back ourselves into a First Amendment corner that we can't get out of in a fast-changing world. So that's really interesting, and it touches on both the merits questions that the case or the cases raised, but also the remedy questions. Like if the court is going to do something here, what should it do if it's not just

let these laws stand intact or strike them down in their entirety? How should the court think about how to proceed? So maybe let's divide those two out, start with merits, and then we'll turn'll turn to Remedy. So the Merritt's question, just generally speaking, whether the justices think these laws infringe social media companies' First Amendment rights of speech and expression. Let's start by playing a couple of clips. And I think maybe let's start off with a clip from the Chief Justice, seeming to suggest that the law or the laws violate the company's First Amendment rights. So right out of the gate, he sort of likened the laws to prototypical First Amendment violations, which you can hear in this clip.

So you began your presentation with talking about, concerned about the power, market power and ability of the social media platforms to control what people do. And your response to that is going to be exercising the power of the state to control what goes on on the social media platforms. And I wonder, since we're talking about the First Amendment, whether our first concern should be with the state regulating what we have called the modern public square. And we already played a little bit earlier the Kagan clip that likens social media companies' content moderation policies to editorial discretion.

That framing also suggests that she too thinks these laws trigger First Amendment scrutiny. Now, we're not suggesting that they don't have any hesitation with respect to remedy, but at least on merit questions, they did seem to be quite concerned about the First Amendment implications of the law. And here is Justice Sotomayor taking out a similar view. I have a problem with laws like this that are so broad

that they stifle speech just on their face. And then finally, Kavanaugh and Barrett seem to be with this group as well. We're, in the interest of time, not going to play clips right now because they will tee up some other issues we will want to talk about later. But that's at least five for, you know, some real concerns about the First Amendment and the kind of tolerability of the law under basic First Amendment principles. And Evelyn, you mentioned that not all of the justices necessarily appreciated the nuance, right, in these issues. And there were some justices who were very obviously sympathetic to the laws kind of in their entirety and that was mostly justices thomas and alito shocking i know but

justice thomas for his part seemed to question whether the social media companies were speaking or engaged in expression through content moderation he kept asking what are you saying or what is an algorithm saying since of course everyone knows the only true expression and protected speech under the first Amendment is baking cakes, but only for straight weddings and making websites, again, only for straight weddings. But then Sam Alito, he really showed up this week at Oral Argument because he downed a few red polls and got into true conservative grievance warrior mode. So we're going to play a clip and then unpack it. And this is the one I was teasing Evelyn about in the intro. So here you go. There's a lot of new terminology

bouncing around in these cases. And just out of curiosity, one of them is content moderation. Could you define that for me? So, you know, look, content moderation to me is just editorial discretion. It's a way to take all of the content that is potentially posted on the site, exercise editorial discretion in order to make it less offensive to users and advertisers. Is it anything more than a euphemism for censorship? I want to just ask you this. If somebody in 1917 was prosecuted and thrown in jail for opposing U.S. participation in World War I, was that content moderation? Evelyn, we assume you're going to be playing

that Alito clip to instruct the young minds of America how the First Amendment works. Yeah, I think that's right. It's really going to make real for my students, the great threats that previous dissidents, historical dissidents, faced when being subjected to these laws. Yes. Yeah. So there's a lot going on in this clip. I can't help but just offer a few thoughts. I want to make clear that, listeners, you did actually hear Sam Alito likening Facebook and YouTube, removing certain posts to the federal government, locking up labor organizers for opposing the United States participation in World War I. This is a reference to the case of Eugene Debs, whose conviction the Supreme Court upheld under the Espionage Act. Sam, you know, in case it helps, Facebook jail isn't real jail.

Like, I recognize posters got a post, and Sam Alito would know, but Facebook is not actually the government. And yet this was not stopping Sam. And I also – if anyone was going to uphold Eugene Debs' conviction for labor organizing and opposing U.S. involvement in World War I, it would be Sam Das Coppied Alito Alito, right? Like this guy was a lone dissenter in a bunch of free speech cases ranging from U.S. versus Stevens, Snyder versus Phelps. He's written so many anti-Labor decisions, so on and so forth. And this moment just was the moment of the case for me. Didn't it call to mind Kyle Bragg, who had formerly been the leader of the New York Union that's part of SEIU, basically instructing Sam Alito to get the working man's name out of his mouth when Alito was basically making a similarly cynical point in the gun case, Bruin, during that oral argument. It had such echoes of that to me.

Yeah, I heard Kyle Bragg's voice in my mind. As Alito was asking the question. It was also, you know, he doesn't invoke Orwell in the clip we just played, but his suggestion that there is something deceptive and misleading about the very label of content moderation that, in fact, something much darker is afoot on the part of these platforms. I don't even know how many times he invoked Orwell, but it was just like, I'm not sure. I'm not sure. Again, I think the metaphor, actually, there might be something to it, but I don't think that what's Orwellian is the companies. I think it's the states.

But you're close, Sam. You're so close. But in any event. Or Alito himself, right? Like his euphemizing content moderation to Eugene Debs is Orwellian. That's true. Okay. So it was in the neighborhood. He just needed to sort of shift things slightly. But so in any event, Alito was in rare form. And there's more to say about merits, but that is a kind of a rough rundown, I think, of where the justices were on the merits. But we do want to complicate them a little bit,

as Evelyn, you already started to do. We are all law professors, and we can't help note some of the aspects of these cases that are definitely more complicated than they might seem at first blush. I think we at least, Leah and I and Evelyn, I presume you do as well, think that, you know, these laws as written are obviously unconstitutional in important respects, but that doesn't mean that this is an easy or simple set of issues or set of cases. And one of the potential complications isn't about top-line constitutionality, but just a complication in the case relates to an issue that was part of two cases the court heard last term, which is Twitter v. Tomna and Google v. Gonzalez. So those cases partially concerned the reach of Section 230, a provision in the Communications Decency Act that insulates certain social media companies from civil liability if they're engaged in content moderation. And the court didn't say anything about Section 230 in those cases, right? It just decided that social media companies

weren't liable for other reasons. But some of the justices, including Justice Thomas, thought that the social media companies' arguments in the cases we're talking about today were inconsistent with their representations or arguments in the Section 230 cases. Since here, the companies are saying that we are publishers, right? That's what we're doing, exercising editorial control. And there they aren't, at least for certain purposes, in that you can sue publishers for materials that they publish. So I'm curious, Evelyn, what you made of that. Is there tension or inconsistency between the Section 230 issue, even if not like the cases as they were decided last term, and these cases? Yeah, so I think Paul Clement and Solicitor General Prologue deserve

like medals for patience, honestly, for the number of times they had to slowly and gently totally correct, totally fantastical accounts of the history of Section 230. It was really very impressive because, you know, there is nothing at the least inconsistent between these two positions. And in fact, it's directly the opposite. It's precisely because the common law position is that publishers are speaking for First Amendment purposes when they choose to publish the content that they choose, that Section 230 is necessary. Because in the early days of the internet, a court found that platforms could be liable for the content of users on their services if they engaged in any kind of content moderation,

and that that liability would either disincentivize them from content moderating at all, or force them to moderate way too heavily in order to be you know, be risk averse and avoid any chance of liability. And Congress didn't like that policy outcome. And so Congress took the view that instead what they needed to do was provide platforms with immunity in the form of Section 230 precisely so they could moderate without fear of liability. It's reaction to that position that makes Section 230 necessary. And the Section 230 cases included this moment in Google versus Gonzalez that we wanted to play, which was a rare recognition of humility among the justices. On the other hand, I mean, we're a court. We really don't

know about these things. You know, these are not like the nine greatest experts on the internet. So it seems like that's a rationale the justices should keep in mind for these cases, too. There are also some other through lines worth flagging here as far as how these cases relate to other matters the justices have decided. One is, as you noted, Evelyn, you know, the state sought to depict these laws as basically public accommodations laws, anti-discrimination measures, and some of the justices were receptive to this idea that the social media companies are essentially businesses that hold themselves out as willing to do business with the public and with anyone, and therefore they should have to post content, right, any content from anyone no matter what it says, to which we say, do you remember your decision last term in 303 Creative? Like the decision that literally said a business who holds himself out to the public can't be prohibited from discriminating on the basis of sexual orientation in some applications and in some cases. But more generally, I feel like there is a category error in thinking about

these social media companies as common carriers with respect to content moderation, because there's a difference between removing content based on what a post says versus who the user is or status. And this just seemed to go right over their heads for whatever reason. But I think the more interesting parallel for me is a contrast between these cases and campaign finance, because the Texas and Florida laws seem to be based in part on an equalization rationale. The idea that social media companies are not giving equal airtime or fair shakes to unhinged views like the 2020 election was mired in fraud or ivermectin cures COVID, et cetera.

And the Supreme Court has rejected the idea that government gets to equalize airtime in the marketplace of ideas in the campaign finance space, like in Citizens United. So Justice Kavanaugh channeled this logic as a way to invalidate the Texas and Florida laws. So Evelyn, I guess I would be really curious to hear how you think about the relationship between these laws, right, and the theory in Citizens United and, you know, that as a possible rationale

for invalidating them. Yeah, great. I mean, one of the things that I find so fascinating about this moment and these cases is that the politics are all really weird and scrambled here, right? So Genevieve Lakier and I have written about this, about, you know, the fact that exactly as you're describing, Leah, until very recently, it was conservatives who are most closely associated with and responsible for this deregulatory tilt of the First Amendment and the idea, the embrace of the really privately owned and operated marketplace of ideas. What the First Amendment means is that the government gets out of the way and the rest sort of happens and pans out as it does. And progressives, meanwhile,

were the primary critics of that approach and the sort of expansive discretion that it grants to powerful corporate actors and the distortions that that creates. And the campaign finance cases are the epitome of that dichotomy and that divide where the conservative justices were leading the charge against the regulations that were trying to remedy these distortions in the economic marketplace that led to the distortions in the marketplace of ideas and the liberal justices who had a more positive view of what the First Amendment allowed in terms of seeing regulations as a way to enhance and not only abridge free speech. And now things have gone topsy-turvy, right? You have these Republican

states passing these laws to regulate large business enterprises and amplify certain voices that they worry are otherwise being squelched in the marketplace of ideas, and that their main audience on the court are the court's most conservative members. They're the people that these Republican states are talking to. And that's why, you know, when I said that the arguments were more interesting than I expected, this is why I was really happy to hear the liberal justices aren't necessarily going to fully and completely buy into the libertarian vision of the First Amendment that the platforms were offering, that Justice Kavanaugh every so often would jump up, pop up in the middle of argument and remind us that what the First Amendment says is no abridgment of speech by the government. And so if we're not talking about the

government, like, what are we even doing here? And, you know, Justice Kavanaugh's idea of an ideal speech environment is not my idea of an ideal speech environment. And, you know, I don't think that the only threat to free expression can ever come from the government. And so I hope that we can come up with an answer to the First Amendment in right? And if they are engaged in speech, it doesn't necessarily mean, nor should it necessarily mean, that the government can't touch platform policies at all, right? Justice Jackson asked about this at moments because the logic of the social media company's position that everything they're doing is expressive and any attempt to regulate them necessarily regulates on the basis of speech could limit the government's ability to require certain forms of content moderation, perhaps to make social media companies safer for children or less susceptible to hate speech, right, or less susceptible to misinformation,

etc. And so the Texas Solicitor General talked about this a lot, although much less eloquently than you did just now, Evelyn, because he invoked an internet meme that I just feel the need to play here. You know, the expression like, you know, sir, this is a Wendy's. There has to be some sort of way where we can allow people to communicate. Sir, this is, in fact, a Wendy's. You know, whatever. I mean, it's not the most incorrect thing he said all day. So, there you go, I guess.

That's good. Let's pivot now to the issue of remedy. And so, you know, I do think the remedial discussion was, as you alluded to earlier, Evelyn, informed by maybe a surprising degree of sort of nuance. There's a lot of concern about these laws violating the First Amendment. But, you know, and maybe there were some real qualms about upholding an injunction that invalidated the law on its face. And maybe just a definitional point for listeners who aren't steeped in the terminology, a facial challenge just means the plaintiffs brought this case, essentially saying the law can't be applied to anyone about anything the law might cover, and they asked the court to invalidate the law on its face, basically meaning that it cannot be applied at all. And some of the hesitation seemed to come from the fact that the

Supreme Court has some cases seeming to say that in order for courts to invalidate laws on their face, courts have to conclude that there are no valid or legitimate applications of the law. Now, I think when you probe, it's pretty clear that actually those cases don't even really mean what that short distillation suggested. And they don't properly apply in a First Amendment case like this. Courts haven't used them that way. But that at least seemed to be getting more serious attention, that idea that laws shouldn't be invalidated on their face if they could be legitimately applied in some circumstances. So what, Evelyn, did you make of that? Like, what possible valid applications of these laws might there be? And does the existence of some potentially valid applications undermine the case for essentially facially invalidating these laws,

right, wiping them away in their entirety? Yeah, I mean, this was an area of a lot of confusion and back and forth during the argument. And it was really a product of the really extreme positions that the parties had taken all the way through the course of this litigation from the get-go, this idea that it's either completely valid in all applications or completely invalid in every application. And so the court that clearly a number of justices who weren't agreeing with that position, they were concerned, well, what do we do when we don't want to adopt either of your extreme positions?

Two buckets of potential constitutional applications to these laws came up during oral argument. The first was primarily in relation to the Florida law and the idea that it might apply to non-expressive businesses as well. So platforms like Uber, Venmo, Dropbox, Amazon Web Services or online marketplaces like Etsy to the extent that they're just facilitating the sale of goods. The idea that these platforms aren't primarily in the business of providing a speech product. And so the constitutional issues are going to be different there. Now, Texas doesn't cover those platforms, or at least it was saying in oral argument that this is only applying to speech platforms, which brings us to the second bucket of possible

valid applications of those laws, which is that a number of justices seem to be agreeing. I think, you know, I counted four at least that, you know, these laws would be unconstitutional as applied to the paradigmatic social media platforms and their news feeds, like to the extent that they're curating and arranging content in people's news feeds. That seems problematic as a matter of the First Amendment. But once you move away from that to other parts of the social media platforms that operate much more like common carriers, they're not sure what the constitutional analysis is there. So we're talking like DMs, maybe WhatsApp, email, Facebook marketplace, this idea that, you know,

you can't just bundle everything together, all of these different kinds of functionalities, all of these different kinds of apps, basically. As long as you have like the same logo at the top of the page, you can't just then say, well, we're all, you know, it's all First Amendment protected and it shields all of it. Because that would just sort of, it would be a workaround to get around the regulation to just sort of bundle it all together. Solicitor General Prologue gave this great analogy of Amtrak. You know, she said that you can regulate Amtrak like a common carrier with respect to the transportation of passengers. But if it creates some kind of magazine for the passengers to pursue, that's entitled to full First Amendment protection. But the converse is also true, right? Like just because Amtrak produces a magazine doesn't mean that suddenly everything else it does in its business is entitled to full First

Amendment protection. Yeah, so that is a great point to highlight. And while I agree with you that there was more nuance in particularly the merits discussion than even I was expecting, the remedy discussion frustrated me because as a federal courts person, like the idea that a law is only invalid on its face if it is invalid in every single application is just not actually the standard that the court has applied in facial challenges. You know, Richard Fallon has a famous article that the court has cited, right? Facial challenges, fact and fiction that show this isn't true. It's definitely not true in First Amendment matters, you know, like overbreath or vagueness. Paul Clement specifically noted this, right, that the court has applied a different standard. In the First Amendment context,

as my friend was indicating, the question is whether or not the statute has a plainly legitimate sweep. So it's not the Salerno, if there's one little application somewhere, that's not necessarily a good thing, as Paul Clement pointed out, as far as the incentives it creates for states. So we'll play that exchange here. First of all, that's not the standard, with all due respect. I mean, this court has never applied the Salerno standard in a First Amendment case. And this would be the worst First Amendment case in this court's history if you started down that road. Because you can always put in some provision into a statute that's innocuous. And then you say, well, there's a couple of fine things in there.

You look at it section by section, and these sections are pernicious from a First Amendment standard. Can't have content about a political candidate. There's no constitutional application to that. So at various points, the justices really seem to be asking the lawyers challenging the laws, how do we do this? Is there a way out, right? Can we find the laws invalid with respect to these big social media companies, news feeds? Can we say the law is on hold while maybe you narrow the injunction, et cetera? And this came up not only during the argument of Paul Clement, but also Solicitor General Prelogger. And they really seem to be searching for a way to keep especially the problematic application of these laws on hold while because the places I got really uncomfortable, among others, I guess, during the arguments were when you had the justices just spitballing about their own experiences with like Etsy. And it was like, this cannot be the basis for reason decision making is I was on Etsy or sometimes I DM or I use Uber.

And it was just like, I can't believe that the conversation is happening at this level. So I thought that Clement was strong in his suggestion that leave the injunction in place. And there had not been real proceedings that would have allowed a trial court to really examine these kind of questions of application in a nuanced way. And so maybe a narrowing of an injunction could happen down the road. But for the court itself to write an opinion that seeks to do that based on the thinnest of records and purely anecdotal experiences of the justices seemed to me wildly irresponsible, which doesn't mean they won't do it. But at least I thought Clement was urging them in a constructive way in a different direction, and hopefully one where they don't say things that would, you know, forever seem to insulate these companies from

any kind of government regulation. Because I do think that's why you had some interesting cross-pressure dynamics on display. It was like, these state actors are very, very suspect. These laws are deeply suspect, but these tech companies are dangerous too, right? So there are not really good actors here. And so I think that a huge decisive win for either side is actually not great for democracy and our kind of collective discourse. And so that I think is the challenge in these cases. So Evelyn, any kind of final thoughts to leave our listeners with as far as what to look for when the court eventually releases an opinion in these cases? I think it will be really interesting to see how they craft the remedies question because, you know, you're right, Paul Clement was sort of urging them and

Prelog was urging them to be narrow and cautious here. But they were sort of scrambling because that is not how this had been litigated. You know, the states didn't defend these laws on the basis that they had other possible constitutional applications. And the platforms came in swinging. They didn't, like, they were, you know, changing position on their feet during oral argument because it was clear that there were enough justices that weren't buying their position that, you know, these laws are unconstitutionally motivated and therefore you need to strike them down entirely. But it does leave the justices in this awkward position of, like, not, you know, there were all of these questions about like, is this even properly before us in order to answer these questions? I will say, you know, it's a little surreal to be talking about these

laws in this way as if they're not the product of the culture wars that they were. I mean, these laws were passed by Texas and Florida because they were angry at the big platforms and what they were doing in their news feeds. And they were not shy about saying this. And so it's going to be kind of bizarre if they are now somewhat saved by the fact that they were angry at the big platforms and what they were doing in their news feeds, and they were not shy about saying this. And so it's going to be kind of bizarre if they are now somewhat saved by the fact that they were poorly drafted and also possibly potentially unintentionally apply also to Uber or the Facebook marketplace or DMs or something, which is not the purpose of these laws. But, you know, I still kind of am really happy about that outcome because I do think we need to be cautious here. And I was worried that these what should be fairly easy cases for First Amendment purposes might end up making bad law because they are easy and they lead to overbroad statements by the court.

Yeah, the possibility that you just noted seems to be the opposite or maybe the inverse of malevolence tempered by incompetence, where it's like malevolence aided by incompetence. Right. You gotta win one sometimes, right? Exactly, exactly. Well, thank you so much, Evelyn, for joining us. Listeners, if you want to learn more, listen to Evelyn's podcast, Moderated Content, for more fulsome discussion of these cases and other issues. Thanks very much. This was a really big week for arguments at the Supreme Court. The court also heard arguments in Garland v. Cargill, a case about federal restrictions on bump stocks, that is, devices that can transform semi-automatic rifles into machines that can fire hundreds of bullets per minute. And before we get into the bump stock rule

and the argument in this case, here's the background. So federal law restricts and has long restricted machine guns. Since 1934, it has required registration of machine guns and has imposed accompanying criminal penalties. In 1968, Congress amended that law to cover parts that facilitate automatic machine guns. And in 1986, Congress amended the law in order to ban transferring or possessing machine guns. And this case is about essentially what a machine gun is,

what is covered by these prohibitions. As we've talked about before, in October 2017, the deadliest mass shooting in American history happened in Las Vegas, Nevada, where 58 people were killed and 500 more were wounded, and the perpetrator carried that out with a bump stock. A bump stock is a device designed and intended to allow users to convert a semi-automatic rifle into something that shoots a lot more bullets without the person holding the gun having to manually push or pull the trigger or otherwise fire the weapon themselves. Essentially, it works so that the rifle can be continuously fired with a single pull of the trigger, discharging hundreds of bullets per minute. Bump stocks trigger a cycle of bump-shoot,

bump-shoot, where after the trigger is pulled, so long as the trigger person continues to hold the device with forward pressure, the device continuously fires. So here is a clip going into a little bit more detail about how it functions. So you'll hear Deputy Solicitor General Brian Fletcher, who argued for the federal government in this case, and I thought was characteristically precise and excellent. So here's Brian. To fire a rifle fitted with a bump stock, the shooter simply places his trigger finger on the built-in finger ledge and uses his other hand to press the front of the rifle forward. As long as the shooter maintains that steady forward pressure, the rifle will fire continuously until it runs out of bullets, and it will empty a hundred-round magazine like the ones used in the Las Vegas shooting in about 10 seconds. Those weapons do exactly what

Congress meant to prohibit when it enacted the prohibition on machine guns, and those weapons are machine guns because they satisfy both disputed parts of the statutory definition. So that's what a bump stock is. After the Las Vegas shooting, the Bureau of Alcohol, Tobacco, and Firearms, or ATF, issued an interpretive rule in December of 2018 that said that bump stocks transformed guns into machine guns that are restricted under federal law. And that was actually during the Trump administration, right? This is not a Biden-era rule. But the regulation was nevertheless challenged, and that's what resulted in this case. So the question here is, does the federal law

restricting machine guns allow the ATF to also restrict the use of bump stocks? Should we start with high-level predictions? Yeah. You know, I think this case is a little bit difficult to predict. Justice Kagan, Justice Sotomayor, Justice Jackson think bump stocks can lawfully be banned. Justices Gorsuch, Thomas, and Alito, and I think Kavanaugh think not. And it was harder to read the Chief Justice and Justice Barrett, although I'm a little gun-shy after the SB8 case to conclude that Justice Barrett might be inclined to be reasonable even if she acts reasonable at an argument. I don't know. Yeah. No, I think that's right. I think that Barrett's performance and questions at oral arguments are not reliable predictors of her votes. And I think

that I probably came out a little bit more optimistic, but maybe because I haven't fully internalized that lesson, because I did think that she was likely with the other female justices and that the four of them were a likely vote to uphold this rule. And the only question was really if there was a fifth vote, could it maybe be Kavanaugh, could it maybe be the chief? And I thought that was, you know, possible to slightly more than 50-50 likely. But, you know, that this is even a close call going in is pretty shocking considering it is the most modest effort to –

I mean, there's very little left that is banned. But machine guns are still on the list. And that's what this is. And it is only in the most formalistic, but also I think the worst kind of textualism that Jonathan Mitchell was demonstrating during this argument that could possibly result in a conclusion that this rule is impermissible as a matter of, you know, the meaning of the statute at issue. And yet, so the fact that it's even a possibility should just like show us how far we have strayed from reasoned statutory interpretation and judicial decision-making more broadly. Totally agree. And we'll get into that kind of textualism a little bit later.

But before we get into those thoughts, I again wanted to start it off with Sam Alito, who again just showed up. He showed up and showed out this week in exchange between Sam Alito and Jonathan Mitchell, which just perfectly encapsulates the ridiculousness of the place. So I'm just going to play this exchange to let it marinate. Can you imagine a legislator thinking we should ban machine guns, but we should not ban bump stocks? Is there any reason why a legislator might reach that judgment? I think there is. Bump stocks can help people who have disabilities, who have problems with finger dexterity,

people who have arthritis in their fingers. There could be a valid reason for preserving the legality of these devices as a matter of policy, even while similar weapons, such as the fully automatic machine guns are being banned? I mean, the amount of material for your book, Leah, that Justice Alito is actually the disability justice advocate, like against the sort of tyrannical and overreaching ATF seeking to ban bump stocks for individuals who might not otherwise be able to operate

conventional machine guns. Like, that's actually the deep current in this case. And I'm so appreciative that Sam Alito cleared that up for all of us. He heard my call for a research assistant, Melissa's call for a research assistant last episode. And he was like, I volunteer. I volunteer. You know, I use various nicknames for the man.

I'm not clear whether this is like woke lito him positioning himself right as the defender of the week right in specious ways or trollito like he's like let me come up with a justification that like you libs would like and try to like throw it in your face even though it doesn't make any sense at all because of course he shows no care or attention to the fact that the kind of mass gun firings enabled by bump stocks can endanger people with conditions that make it harder for them to suddenly flee or take cover, right? Instead, he just decides to, you know, get Mitchell to say Congress was protecting people with disabilities by allowing them to fire hundreds of bullets a minute with

a single pull. Justice Sotomayor was not really having it, so let's play her responding to that. Why would even a person with arthritis, why would Congress think they needed to shoot 400 to 700 or 800 rounds of ammunition under any circumstance? If you don't let a person without arthritis do that, why would you permit a person with arthritis to do it? So I was glad that she did not let that representation go unchallenged. For sure. Yes. So maybe a couple of big picture thoughts, and then let's go a little bit deeper on some of the aspects of the argument. One is that, as we said when we previewed this case, this is not a Second Amendment case.

But the court definitely was bringing some kind of Second Amendment energy or principles to the argument. And maybe by this we mean something like normal principles of law and legal analysis and analytical standards fall by the wayside when a case involves guns. I think that is essentially what we saw at play here because, you know, let's offer a couple of examples. and some justices, specifically Neal and Brett, seemed very concerned about the possibility that bump stock owners would find themselves in legal trouble if they didn't know the bump stocks, which had previously been legal, were now illegal. Anytime the law changes, that's a possibility, and it does not normally seem to bother them very much. And yet here, they were deeply, deeply concerned. But it is a general, longstanding, and well-established rule that ignorance of the law is typically not a defense. It doesn't matter

whether you know that possessing certain items violates federal law. All that matters is that you knew you possessed those items. And yet they seem to be asking for some kind of blood oath from Brian Fletcher that no one would be prosecuted for possessing a bump stock that had been acquired prior to the change in the ATF's interpretation. Fletcher parried all that really well, but it was hard to swallow this energy in light of their ordinary energy in criminal cases, I thought. Yeah. No, they were accusing the Biden administration of potentially moderating the content of those bump stock owners. That's right. You know, even though this isn't a Second Amendment case, you know, the case was argued

by Jonathan Mitchell because of of course, it was. He's also defending Trump in the Colorado case. And Justice Kavanaugh tried to goad Mitchell into involving the Second Amendment, even though the briefs hadn't done so. And Mitchell actually kind of resisted this in this exchange. Last question. You haven't made a Second Amendment or constitutional avoidance argument. In your view, are bump stocks covered by the Second Amendment, protected by the Second Amendment? We didn't argue that because courts are generally loath to decide constitutional questions when there's an easy statutory offering. You didn't throw it in as

constitutional avoidance, and I imagine that was a considered choice, and I'm curious what was behind that choice. There's nothing that prevents this court from invoking the constitutional avoidance canon on the Second Amendment issue, because there is a question, at least, whether this falls within the dangerous and unusual weapons carve out in Heller. We don't have a position on that question, because we didn't brief it. And also dangerous and unusual weapons is vague enough that it's just not clear to us what the answer would be. You've lost Jonathan Mitchell in the aggressiveness of your exhortation to make Second Amendment arguments. Like that's really saying something. Yes, and it's saying something important because this is an area where Justice Kavanaugh

is, in my view, like kind of a wingnut, right? He is really out there on the Second Amendment. And so for all of the media and different people's attempts to portray him as the, like, moderate, you know, justice on the court, the median justice, part of this institutionalist center, he is not anywhere near what anyone described as the middle of anything

on guns. Yeah. I think that's totally right. The one thing I think is possible, and this is how I could imagine him supplying a fifth vote, is that you have the four ladies and then him concurring in the judgment and writing some mealy-mouthed concurrence that basically says- But how I am a father of daughters. And I would, yeah, but also, so that, and so like, I stand in solidarity with my colleagues. Biggest feminist on the court. Exactly. And somehow, because even when pressed, you know, the challengers didn't suggest the Second Amendment was in the mix and should inform our interpretation of the statute, I agree that the challenge should be rejected. And yet in a future case, my mind is wide open. So it has the feel of like Amelia

Mouth Kavanaugh having a both ways opinion that I could well imagine emerging from this case. Go figure. Another maybe high level note is that the court seems to have lost some of the appetite for the consequentialist energy of Trump versus Anderson. We talked about this in the context of the immunity argument. That was also true here. So in the Colorado case, the court was deeply concerned about what might happen in the event the court allowed states to disqualify people under the 14th Amendment. And all of a sudden, the justices seemed remarkably uninterested in what it might mean on the ground if they said that bump stocks were, again, legal. I can't figure out why they're so concerned some of the time and not in other cases. Just hard to know. Yeah, really difficult. And though

it's not clear exactly how the court is going to rule here, you know, given in particular the chief and Barrett, I did want to say something about how this case positions the justices vis-a-vis the Republican Party, because we have heard a lot, or at least I have heard a lot, about how the court, or courts generally, were the institution that held firm, stood on principle, even while the Trump administration tried to interfere with the peaceful transition of power, you know, courts turned away, right? The efforts to overturn the elections via the courts. And this kind of led to this narrative about how the court and courts are maybe the least bad institution, right, when you have a Republican-controlled Congress and White House. And this is an example where that narrative is just way too simplistic because this court might go further into the abyss than the Trump administration would, right, since the Trump administration concluded bump stocks were machine guns and could be restricted.

And now Supreme Court justices, including Trump nominees, right, could very well say no, right, they cannot. Yeah, no, that's a great point. Okay, so if that's right, if a majority or even a subset of the justices say that bump stocks can't be prohibited in the way that ATF sought to do that here, how might they do that, right? Like, what could possibly be their reasoning? And the dispute here is about the meaning of the words in the statute, and specifically whether a bump stock automatically fires based on a single, quote, function of the trigger. So the law defines machine gun as, and I'll quote the statutory language here, any weapon which shoots is designed to shoot or can be readily restored to shoot automatically more than one shot

without manual reloading by a single function of the trigger, end quote. And it also includes, quote, a part designed and intended solely and exclusively for use in converting a weapon into a machine gun. So Cargill and Jonathan Mitchell, representing Cargill, say that the bump stock automatically renews pressure on the trigger, such that the trigger fires based on the pressure generated from the bump stock, and that those firings are multiple functions rather than a single function and thus don't fall within the statutory language. And the government's position is that the bump stock converts the weapon such that one manual manipulation of the trigger, pushing the trigger once, that's a single function and it results in a cycle in which hundreds of bullets are fired in a minute. No additional manual manipulation of the trigger is required. So a bump stock essentially makes it so a single function of the trigger, manual manipulation automatically fires hundreds of bullets. And during the argument, some of the

justices, and specifically just the Democratic appointees, focused on what they called an anti-circumvention principle. Basically, the idea that Congress doesn't write laws to be ineffective or easily worked around. Congress isn't trying to make laws that give people ways to nullify what Congress did. And Justice Kagan pointed out that the statute itself has some anti-circumvention provisions in it, including the prohibition on parts that could result in a weapon that functions like a machine gun. But the statute doesn't say a lot of things that you've agreed are prohibited under the statute. The statute doesn't, you know, think about buttons and the statute doesn't think about switches. And I have to think that if I gave you a different hypo that said it was voice activated,

that you would have to say, yes, that's a machine gun too. And the statute doesn't think about that. And I guess what Justice Gorsuch is saying is that you, in arguing this case, have had to do something very sensible because otherwise it would seem, you know, like, you know, like, you know, this statute is loaded with anti-circumvention devices. The entire way this statute is written

suggests that Congress was very aware that there could be small adjustments of a weapon that could get around what Congress meant to prohibit. And in all kinds of ways, you're accepting of that and saying, yes, you can't circumvent it by that. You can't circumvent it by non-conventional triggers. You can't circumvent it by, you know, all these things that these hypotheticals I've been giving you, but you can circumvent it through this one mechanism. And maybe just a reference to the anti-circumvention principles or provisions that she might have in mind, you know, when you were reading the provision, Kate, right, there's a clause in there that said, or can be readily restored to shoot, right?

And then there's the additional definition that says a part designed and intended, right, for use in converting a weapon into a machine gun. So those are just some of the examples that she might have been referring to. And the idea that there are these anti-circumvention provisions in the law, as well as a general principle, matters because, as Brian Fletcher, the lawyer arguing for the federal government, said, the Fifth Circuit's ruling has already led to some pretty troubling circumvention as far as firearms that courts are allowing. So let's play that clip here. I mean, I talked about some of them, but one of the devices that the Fifth Circuit has held is permissible, or I'm sorry, a district court in the Fifth Circuit

has held is permissible, and the Fifth Circuit has declined to stay, is something called a forced reset trigger. And with a forced reset trigger, the ATF tested it, zip-tied the trigger back, and the gun shot multiple bullets. What the district court said is that under my friend's interpretation, there are multiple functions of the trigger because the trigger is wiggling back and forth imperceptibly and releasing the hammer separately each time, and so it's not a machine gun. And I think it's just not reasonable to read the statute that opens it up to that sort of evasion, and we're seeing concrete evidence of that evasion in the Fifth Circuit. And toward the end of his argument, Mitchell seemed to affirmatively concede that his interpretation of the law would mean that a bunch of other anti-circumvention mechanisms that ATF has long said are prohibited wouldn't be prohibited,

like the Atkins accelerator, which has been banned since 2006. That device relies on a spring and coil mechanism, so pulling the trigger once generates the firing of multiple bullets. The bump stock does this too, but without a spring and a coil, so a shooter has to continue to apply forward pressure to make the bullets keep shooting? And Justice Kagan had some illuminating exchanges with Jonathan Mitchell about where he was drawing the line, that is, what things he was saying were prohibited and what things were not. She suggested he was almost gerrymandering bup stocks or at least didn't have a way of distinguishing them sensibly from things that he thought were prohibited. So we're about to play a long series of hypotheticals with follow-ups that will kind of illuminate this. If a gun fires multiple shots at the push of a button

or the flip of a switch and just keeps firing. Yes, clearly that's a machine gun. That's a machine gun. Yes, that's United States against camp, essentially. Okay, and if a gun does the same thing, except now it's the push of two buttons. Yeah, I thought you say also on page 45 of your brief that a push-operated machine gun that requires the shooter to push and hold two buttons, that that would also qualify. Right, because the two buttons together are acting as the trigger in that scenario. Okay. So you conceded the two buttons is a machine gun.

So now I'm saying instead of pushing two buttons, you push one button and you hold the trigger. It's going to depend on how we define trigger. And the answer to that will not always be clear. The question is can you extend the holding of the United States against camp to this particular situation? I mean, I have to say I think you don't quite know what the answer to that is. If you have an answer, let me know. Because the difference between pushing two buttons, for me, and pushing one button and holding the trigger is not self-evident.

To pushing a button and holding the trigger, and you need to do both. Boy, I thought I was being pretty clear here. You push two buttons. Okay, so now I guess I want to know, what's the difference between pushing a button and holding the trigger and pushing the barrel and holding the trigger? You've just described a bump stock. So Mitchell's answer was that none of these devices actually modified the

trigger. But it's not clear why he had settled on that definition of trigger or this necessary condition of modifying the trigger. Like neither of those things were in the statute. It wasn't clear why he was defining trigger, a function of the trigger, as one push-pull that is like pressure on the trigger. When, as Justice Kagan pointed out, you can modify firearms to fire in different ways and through different mechanisms, some of which Mitchell said would be covered by this law. Like if you just put two buttons on, right, that would mean like a single button, right, a single push or pull of the trigger wouldn't be sufficient such that that modifies the trigger. Here too, even though pressure on the trigger is still required to fire, manual manipulation is not. And that is a very plausible

definition of a single function of the trigger, again, given the overall context and other provisions in the statute. Justice Kagan was so good. It seemed like Mitchell got frustrated with her. I'm not conceding that you can circumvent the statute, Justice Kagan. We're just interpreting the word trigger. And then Sam Alito felt the need to intervene. Mr. Mitchell, this conversation is totally confusing me because I thought that your argument depended on what the trigger, that the function of the trigger was what the trigger does mechanically inside the weapon. We also had some, can we call them illuminating exchanges during this argument about statutory interpretation? I had some, can we call them illuminating exchanges

during this argument about statutory interpretation? I don't know what to call them. So here, whatever this is, let's play it. Justice Alito with a leading question to Jonathan Mitchell. In the field of statutory interpretation, Justice Scalia's betenoir was the Church of the Holy Trinity, a case where he thought that the literal language of the statute had to control, even though it's pretty hard to think that Congress actually meant that to apply in certain situations. As you see this case, is this another Church of the Holy Trinity case? I would say it's quite as egregious as Church of the Holy Trinity, but the arguments the government's making are certainly in the spirit of Holy Trinity, the borrow phrase that was used from the Holy Trinity opinion. And I don't think a textualist

judge can accept the rationale that's being offered by the U.S. government. And they are, in their brief, especially making purposeless arguments along the lines of what we saw in Church of the Holy Trinity. Thank you. Maybe just to like explain this. So Holy Trinity is a, it's a reference to a decision. And it is a bad word, a bad phrase among textualists, an emblematic of anti-textualist reasoning. Because in that case, the Supreme Court said, oh, the text of the law covers this,

but we court aren't going to read the law to do that because it would violate the spirit of the law, what Congress would have intended. And it's like a bad word for textualists. You know, perhaps more relevant for today is that Holy Trinity was an instance where the Supreme Court relied on religious doctrine, right? And, you know, religion to interpret the law. Literally, this opinion says this is a Christian nation. And that was essentially the basis on which the court rendered its decision. So yeah, go ahead. It's unclear if Sam Alito would say that part is so bad. But also the idea that Sam Alito is like the standard bearer

and policer of what textualism is, is just laughable. This is a guy who not infrequently mocks textualism and the rules of grammar and canons of construction, right? The textualists use, they say is important to interpreting statutes. He likened it to an enigma machine and whatnot. So it's just like, try to show some consistency, sir. I know. And this is another example of some shadowboxing with Justice Scalia, I thought.

Yes. And that exchange between Alito and Mitchell led to this response by Elena Kagan, in which she seemed to suggest that, unlike others on the court, including Sam, she actually is a good textualist. Mr. Mitchell, I'll tell you, I view myself as a good textualist. I think that that's the way we should think about statutes. It's by reading them. But textualism is not inconsistent with common sense. At some point, you have to apply a little bit of common sense to the way you read a statute and understand that what this statute comprehends is a weapon that fires a multitude of shots with a single human action. Whether it's a continuous pressure on a conventional machine gun holding the trigger or a continuous pressure on one of these devices on the barrel.

I can't understand how anybody could think that those two things should be treated differently. Unlike that guy. Right, exactly. And I think we're going to spare our listeners having to suffer through Neil Gorsuch talking about function as an intransitive verb. You can't function a trigger. But if you're really feeling masochistic some night, maybe just listen to the argument if you haven't. But I just can't do it. I can't do it. No. Yeah. But anyway, there was some real kind of peak ridiculous Gorsuch performative textualism

about grammar and transitivity. And I don't think it got a lot of traction with his colleagues. I'm hopeful. I thought KBJ had some very good responses as well. But there was like a lot of really disturbing parsing of the kind of status of this word function that really had a like losing the forest for the trees feel to it. Anyway, so I don't know, big picture recap. You think, Leah, that you're pessimistic. You think that the court is going to strike down the rule. I think there's a greater than 50% chance that the court says machine guns

doesn't include bump stocks. But I don't know that it's entirely clear, but it was just hard to read two of the justices. To my mind, Barrett and the chief. Yeah, I'm feeling more optimistic, but I certainly don't think it's a slam dunk by any means. Let's recap one more case the court heard last week, and that is Cantero v. Bank of America, a case about whether the National Bank Act or NBA preempts a New York state law requiring mortgage lenders to pay a minimum interest rate on funds held in mortgage escrow accounts when the state law is applied to national banks.

It sounds really dry, but honestly, there's a tiny bit of McCulloch state law is applied to national banks. It sounds really dry, but honestly, there's a tiny bit of like McCulloch versus Maryland energy to the case. There was even a question about whether McCulloch was rightly decided. So the case and the argument were more interesting than I had expected going in. Okay, so briefly background, we'll see if our listeners agree that this is actually interesting. But under the statute, the NBA, state consumer financial law is preempted, right, meaning the federal law controls, only if, as relevant here, the state law prevents or significantly interferes with the exercise by the national bank of its powers. The Second Circuit said laws are preempted based on whether they purport to control the exercise of national bank powers, not how much a law impacts a national

bank. And then elsewhere, the NBA says that Section 25B's requirement that a preemption determination assess the impact of a particular state consumer financial law. So John Taylor, Jonathan Taylor from Gupta-Wesler, did a great job explaining to the court why the Second Circuit's test seemingly departs from the one that is outlined by the NBA. He was also very clear in explaining how the test should work, why it's administrable. The federal government was supporting him. And they were arguing against Lisa Blatt. Regular listeners of the pod are familiar with Lisa's unique argument style, which I will share with the rest of you here.

It's not in your brief. And it's different. And if I think it's different from the lower court opinion, what are we supposed to do? Then stick with our brief. It's not in your brief. Stick with our brief. You didn't hear anything I said. Well, your brief, the problem is that your brief doesn't explain fair lending laws. Listeners know I have a real soft spot for Lisa talking shit to the justices here, basically yelling at Neil Gorsuch,

you didn't hear a thing I said, which is something I also often want to say to Neil Gorsuch. And she just does it to his face. So respect. It's not clear everyone in the court loves her style, although I actually thought that she seemed to be going over pretty well in this argument. That is not always the case. I thought Taylor was great. He's had a couple of great arguments this year. So I don't know. I think that on the merits, he really was persuasive. And yet Lisa's winning streak is tough. So I don't know if she's an unbroken. No, she lost turkey. She did. That's her turkey she lost. Yeah. Not totally unbroken. So we will see. But it was a pretty entertaining argument, which I did not expect going in. Let's end with some court culture.

And we want to start with an update out of Alabama, right? So we have talked about the decision out of the Alabama Supreme Court finding that cryogenically frozen embryos are children for purposes of the state's wrongful death of a minor act. Following that decision, a number of clinics in Alabama announced that they were pausing IVF services out of an understandable fear of liability flowing from this decision. And in the wake of that announcement, the Alabama legislature passed a law that provides legal immunity for death or damage to an embryo to any individual or entity when providing or receiving goods or services related to IVF. So essentially a liability shield for IVF providers. So that's a statute that may have the effect of restoring IVF access in Alabama. And if so, that's great.

But I think it very much remains to be seen whether the Alabama Supreme Court lets that law stand under the state or maybe even federal constitution, given some of the constitutionally inflected reasoning that we talked about in the Alabama state case, because a statute can't do anything to change what the Alabama constitution requires if in fact the justices think the Constitution itself requires treating embryos as persons.

We noted last time that Alabama, as Beyonce said, ain't Texas. Well, Texas stepped up because we have another front in the battle for reproductive freedom, and this one is out of the state of Texas. So a district court in Texas, which is how these sentences always begin, a district court in Texas invalidated the Pregnant Workers Fairness Act, along with the rest of the Consolidated Appropriations Act, concluding that the law was passed in violation of the quorum clause of the Constitution because Congress authorized proxy voting. We should note that the Constitution actually says the House, quote, may determine the rules of its proceedings end quote but no matter you know the judge who invalidated uh the law is judge hendricks who was nominated by donald trump um at ringwiss on twitter had a great thread pointing out the various errors in parliamentary procedure in the opinion like misidentifying the abbreviation hr as house

resolution rather than house of representatives or misidentifying who signed the bill on the House and whatnot. So, yay law. This decision really had it all. It was like the Pregnant Workers Fairness Act was, you know, it was added to this larger appropriations bill in December of 2022, six months after Dobbs. A sort of unexpected bipartisan coalition came together and was like, well, at least if everyone is going to have to carry pregnancies to term, maybe we should at least provide people some protections against being fired or discriminated against for being pregnant. So, you know, that it was an actually important, good piece of legislation. And of course, Texas, like the most pro-life of states, does not want pregnant workers to be able to go to work free from discrimination. And so that's

the basis for the standing that the court found that Texas had to challenge this appropriations law. I think there was also a challenge to an immigration provision of the larger law that this was attached to. So there's just like the sadism, like the misogyny and also the incompetence of the opinion, right? It can't even get basic matters of parliamentary procedure yet. And it's 120 pages or something. So there was that. But thankfully, there was actually some sanity out of Texas, which is a district court opinion enjoined Texas's extreme anti-immigration law, SB4, that attempts to impose some penalties under state criminal law for violations of federal law, even though in

Arizona versus United States, the Supreme Court had said that some immigration law provisions are highly reticulated schemes that preempt any state involvement whatsoever. So here the Texas law also purports to authorize state courts to order people to be removed, even though Arizona versus United States and federal law more generally make clear that federal immigration law created a system in which federal immigration officers would primarily make removal determinations. And state law specifically bars state courts from considering the fact that there might be pending or potential federal immigration removal proceedings against someone. So that case is now likely to go up to the Fifth Circuit.

Obviously, that's how all happy stories begin their endings. No, no way it's going to end well, because we know the Fifth Circuit is pretty sure that Texas law and not federal law is supreme when it comes to immigration and the border. And the Fifth Circuit had to get on that BS early. The New York Times reported that late Saturday night, the Fifth Circuit entered an administrative stay of the district court decision in joining the Texas law. But the Court of Appeals also apparently indicated that the stay would expire this Saturday unless the Supreme Court intervenes before then. We're going off the New York Times reporting about this because at the time we're finalizing this episode, the Fifth Circuit hasn't actually released its order. But it appears that the Court of Appeals made it such that Texas's anti-immigration law, a law that destabilizes and challenges the

existing framework for immigration law, will go into effect this weekend unless the Supreme Court stops it. So, Skotis, your move. All right, listeners, you can join the Crooked staff on March 7th for a State of the Union group thread. This time around, you can watch along on the Pod Save America YouTube channel or our Friends of the Pod Discord, where you'll be able to submit questions to Tommy Vitor, Ben Rhodes, Aaron Ryan, and others in the main chat. If that sounds like your kind of watch party, head to crooked.com forward slash friends to learn more and sign up. And the Crooked Store's latest collection is all about protecting reproductive rights and telling lawmakers to keep their bans to themselves. The

No Trespassing collection features four different designs, each inspired by a different state where abortion freedom is under attack. There's Stay Out of My Swamp for Florida, Stay Out of My Hole for Arizona, Stay Out of My Prickly Pear for Texas, I think I'm going to get that one There's Stay Out of My Swamp for Florida, Stay Out of My Hole for Arizona, Stay Out of My Prickly Pear for Texas, I think I'm going to get that one, and Stay Out of My Strip for Nevada. A portion of proceeds will go to Vote Save America's Fuck Bans, the Fight Back Fund, which currently is supporting abortion rights organizations across key states. Head to crooked.com slash store to shop. this week's episode. Audio support from Kyle Seglin and Charlotte Landis. Music by Eddie Cooper. Production support from Madeline Herringer and Ari Schwartz. If you haven't already, be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode. And if

you want to help other people find the show, please rate and review us. It really helps. Most news commentary is delivered in 90-second soundbites that barely scratch the surface of a new development. Not talking feds, join host, legal commentator, and former U.S. attorney Harry Littman for weekly roundtables with prominent journalists, lawyers, and politicians on the latest breaking news in politics, law, and more. They'll give you an insider's view of what's going on in Washington and beyond. They'll always dig deep, but they also keep it fun. New episodes out every Monday, wherever you get your podcasts.