Strict Scrutiny - Will the Supreme Court break the Internet?

Episode Date: February 20, 2023

Danielle Citron, author of The Fight for Privacy: Protecting Dignity, Identity, and Love in the Digital Age, joins Leah and Melissa to preview two  Supreme Court cases that ask whether online platforms should be held liable for user-uploaded content. Plus, more drip-drip-drip from the investigation of the Dobbs  leak.Read The Fight for Privacy: Protecting Dignity, Identity, and Love in the Digital Age (use promo code STRICT10 for 10% off!)Read The Onion's incredible amicus brief 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 necks. Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts today. I'm Leah Littman. And I'm Melissa Murray. And we are back in session. And as you'll notice,

Leah and I are alone. You know what happens when Leah and I are alone. Don't get excited. We just have hijinks, and Kate's not here to rein us in. So this means this podcast is about to be super lit. And it's the perfect time to get lit because the court is about to resume hearing cases during what is going to be a massive February argument session. So if January seemed light to you and not full of headline grabbing cases, you're right. But February is more than going to make up for that. And to help us preview some of the huge tech cases about the future of Al Gore's Internet is strict scrutiny, super fan and super guest Danielle Citron. Danielle is the drumroll. Jefferson Scholars. Cheer, cheer. your cheer, Jefferson Scholars Foundation Schenck Distinguished Professor in Law and Cattle and Chapman Professor of Law at the University of Virginia Law School, Wahoo Wah,

where she writes and teaches about privacy, free expression, and civil rights. And if that wasn't enough, in 2019, Danielle was named a MacArthur Genius Fellow based on her work on cyberstalking and intimate privacy. So welcome back to the show, genius Danielle Citron. It's fantastic to be with you. So a little known fact is that Kate and Danielle actually can't appear on the same episode of Strict Scrutiny together since it tips the balance of the podcast, Cassandra to Optimist ratio, which is just not what the universe, not what the universe allows. So I kid, Kate couldn't be here due to another obligation, but she will be back next week. I'm going to try to

bring the Pollyanna to the show. How does that sound? Well, that's, yeah, I mean, that was, yeah, you and Kate are very much of a piece in that regard. But we are still very lucky to have you, Danielle, because you were going to help us preview the cases the court will hear this week. And we're also going to talk about your recent book, The Fight for Privacy. But first, we're going to get into these cases because they're pretty big. And as we say, they are about the future of the Internet. So let's start there. And when we finish up and talk about your book, we'll follow all of that with a little court culture.

And we have been missing our court culture dose because we've been doing some other kinds of episodes, but we have a lot to catch up on. So let's get to it. Indeed. So the Section 230 cases, which are the big tech cases Melissa was alluding to, are actually a pair of cases that the court is going to hear the first week of its February sitting. The cases involve deeply tragic events in which people lost their lives because of international acts of terrorism. And the plaintiffs say these acts of terrorism were fueled by radicalization on the internet, which is why they brought these cases. So the cases also present slightly different questions. So what we're going to do is summarize the facts and the issues of the cases before we start to unpack them anymore.

So we'll do a little bit of background about the big issue that most people are associating these cases with. And that's about Section 230 of the Communications Decency Act. So I guess let's start there. Danielle, could you tell us what Section 230 is? You had your emphasis on one part of the title of the statute. I'm going to lean into another, which is it's part of the Communications Decency Act of 1996. So the central purpose of the law was to criminalize the hosting of pornography online, which you might say, how is that even possible to have an Internet without porn? And that's precisely what the Supreme Court thought in striking down basically all of the statute. And the only thing in the embers that remains is Section 230. Now, so Section 230 is entitled, and I want to also pause here because this is important, protection for private blocking or filtering of offensive speech.

And the one key provision, which everyone focuses on and ignores the other important key provision, is section 230C1. It's entitled treatment as publisher or speaker. And it says that no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. Now, the following subsection, which is sort of a pair with the first, is entitled civil liability. And it explicitly limits the liability that an interactive computer service provider will face for removing speech by third parties. voluntarily taking it in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent,

harassing, or otherwise objectionable. So just to paraphrase, I guess, it means that a platform like Facebook or YouTube or whatever can't be understood as the publisher of items or content that is offensive if that content is actually shared on the platform by other people. So the fact that you host the platform does not make you a publisher or a speaker for purposes of the Communications Decency Act. And then secondarily, if you, as the platform, decide to do content moderation, you won't be liable for infringing upon the rights of any of the individuals who share that content on your platform when you take those steps to moderate or take out offensive content. The entire project of Section 230 is to ensure that interactive computer services, so that's like the

early ISPs that they had in mind, that they engaged in content moderation. And they wanted to make sure that they weren't afraid to engage in content moderation because they knew about, there was a case from 1995 in New York State Trial Court opinion, Stratton, Oakland versus Prodigy. And in that case, the New York Supreme Court found that because Prodigy had engaged in some content moderation, it was like filtering dirty words. And it left up on a bulletin board called Money Talks, defamatory content, that it then became a publisher and so strictly liable for content that was then posted. And that would deter other ISPs from moderating content. So essentially, this is a measure that's

intended to provide ISPs with the opportunity to moderate content without worrying that they're going to be liable down the road. So it wants to encourage content moderation because they don't want the internet to become a cesspool. That's right. And that's precisely what Chris, so Representative Chris Cox and Representative Ron Wyden, they got together, the little merry band, and they wrote Section 230. And just to be clear, as you said so well, it was to incentivize cleaning up the internet. That's Cox's words, cleaning up the internet. And it's really important to underscore that Section 230Cs, we just talked about C1 and 2, that title of

Section 230C is called Protection for Good Samaritan, Blocking and Filtering of Offensive Content. So they were leaning in hard in the idea that we don't want to scare you off. We want to encourage you to be good Samaritans. We want you to have terms of service and decide the kinds of content that's acceptable on your sites. And we're not going to punish you or we're not going to increase your liability for trying to enforce your rules, but failing to remove or keeping up some content and also overly taking down content. So that's C1 and C2 as they work together.

Got it. Okay. So we'll come back to what Section 230 does or doesn't do in a second, but for some specifics of the cases to give you a sense for how the 230 issue has come up and what it means or doesn't mean. So Gonzalez versus Google is the case that is the actual Section 230 case. So the plaintiffs in that case, who are the petitioners at the Supreme Court, meaning they lost in the courts up until now, the plaintiffs are relatives of Nohemi Gonzalez, an American citizen who was murdered

in a November 2015 terrorist attack in Paris, France, for which the Islamic State of Iraq and Syria, ISIS, claimed responsibility. So, Danielle, could you the Islamic State of Iraq and Syria, ISIS, claimed responsibility. So, Danielle, could you tell us about the plaintiff's theory for why Google is liable for Ms. Gonzalez's death and the case's procedural history, that is, what kind of happened in the courts until now? Plaintiffs sued Google under the Anti-Terrorism Act, and the plaintiffs alleged that Google is liable under the ATA for providing resources and assistance to ISIS through Google's ownership of YouTube, the video sharing platform, which ISIS used to spread its message. But more specifically,

plaintiffs alleged that YouTube's algorithm, which mines subscribers' data and then prioritizes and feeds and recommends videos, that that resulted in ISIS videos being recommended to YouTube users who then would be likely to click on those videos. And plaintiffs also alleged that ISIS was able to derive profits from the videos that they posted because of YouTube's AdSense program. Think of these platforms. They're essentially, they're advertising platforms, right? So that YouTube is sharing some of the profits with content creators, including ISIS. So they can then share revenue from the ads that are placed alongside the videos. So the courts dismissed the claims against Google, you know, Google by, you know, YouTube, finding that Google and YouTube couldn't could not consistent with Section 230 be held liable

under a theory that turned on the content of ISIS's speech. Since ISIS generated the speech and Google, YouTube can't be treated as the publisher or speaker of a third party speech. And I know we're going to get into why, you know, what we think about those or, you know, how the court might view that. But that's what the courts below found. And then there's a second case here, and it's technically not a Section 230 case, which may become important down the line. But the case is called Twitter versus Tomna. And the issue it presents is about the scope of liability under the Anti-Terrorism Act. So in 2016, Congress amended the ATA to expressly provide

for aiding and abetting liability as part of the Justice Against Sponsors of Terrorism Act, JASTA. The amendments say that in an action based on an injury arising from an act of international terrorism committed, planned, or authorized by a foreign terrorist organization, liability may be asserted as to any person who aids and abets by knowingly providing substantial assistance or who conspires with the person who committed such an act of international terrorism. Josta further states that Halberstin v. Welch, a D.C. Circuit decision that interpreted the scope of aiding and abetting liability, provides the proper legal framework for how aiding and abetting liability should

function in this context. So the facts of Tamna are just as tragic as they are in Gonzales. ISIS claimed responsibility for an attack in which a gunman fired 120 rounds into a crowd at the Reyna nightclub in Istanbul, Turkey, and that killed 39 people, injured 69 others. Plaintiffs who are the respondents in this case, meaning they won below, are family members of Nawaz Alasef, a Jordanian citizen killed in the attack. So plaintiffs brought suit under the Anti-Terrorism Act against three social media companies, Twitter, Facebook, and Google, again, for Google's operation of YouTube, alleging that the companies were a critical part of ISIS's growth, kind of based on similar theories that Danielle was outlining in the Google case.

All right. So, Danielle, the procedural history around Tamna is somewhat different from the procedural history in Gonzales. So what exactly happened here in how this case proceeded from the district court to the Supreme Court? Okay, so in the district court, it dismissed the complaint, finding that the company's actions didn't rise to the level of aiding and abetting terrorism under the Anti-Terrorism Act, as amended by JASTA. And because it dismissed the case against the companies, it never reached the Section 230 issue. So it didn't decide whether the plaintiff's theory of liability depended on treating a content provider's speech as that of social media companies. Then the Court of Appeals reversed on the aiding and abetting question,

finding that the allegations did state a claim for aiding and abetting liability under the ATA, and then remanded the case to the district court to consider the Section 230 issue. So given that, that is, given that no court has actually decided whether Section 230 prevents the various social media companies from being held liable here, it is possible that the Supreme Court could dispose of this case, and I think also the Google versus Gonzalez case, without reaching the Section 230 issue. Is that right, Danielle? That's right. And this might be a big, in my world, hollow allude about nothing. And I can't decide if I want them to make a ruling in this case.

And I don't, because it could be worse than the status quo, which isn't great. Imagine that, the Supreme Court making the status quo worse. We've never encountered that possibility before. I could not even imagine that. Danielle, you were supposed to be the optimist. Well, I might be. It depends. Maybe as we talk, there might be an optimistic way to think about how they might so decide this case. I'm going to pitch it how I think of an optimistic way to think about how they might so decide this case. I'm going to pitch it how I think they should understand that that might be a way to move forward in a probably the way they won't decide it. I'm channeling Kate, right, way to think about these things. OK, so we are basically going to bracket the Anti-Terrorism Act question because the Section 230 issue is really what I think most people are interested in these cases for, and the issue that has the possibility to really, you know, reshape or affect the internet,

more so than the Anti-Terrorism Act question of liability does. Okay, so as promised, Danielle, we kind of briefly covered the company's argument for why they think Section 230 doesn't allow the companies to be held liable. That is the argument for why Section 230 grants them immunity from these suits. You know, they say they, the social media companies, the service providers can't be treated as the publishers or speakers of content generated by someone else here, you know, ISIS's videos and posts. Now, courts have reached this conclusion in some interesting ways. So can you explain more about those cases here? That is how it came to be that Section 230 is interpreted to block social media companies from being sued in cases like this one. This is broadly speaking, like from the get go, post 1996, you know, in 1997, courts begin to look at the issue and they start to say, listen, if it's content and we're talking about a third party's information and the lawsuit has anything to do with third party information, then we're going to say we're even if the liability has very little to do with the third party's information, we're going to say, look, we're

not going to treat you as a publisher or speaker because the information is provided by someone else. And so we're not going to treat you as a publisher or speaker and you're off the hook. So there's a first move that I think very possibly the court is going to focus on. And I think the answer is, and could be arguably, is, you know what, this lawsuit is about what YouTube does. It's not about what ISIS is saying. What this lawsuit is about, the aiding and abetting, is YouTube and Google, they're using people's personal data to tailor and rep using their algorithms to tailor and pitch videos to people.

That the lawsuit is about precisely that. No matter what the videos say, they could have kind of some messages could be pro-ISIS, but in ways that are skipping down the street holding hands. Whatever that may be, the theory of liability focuses on YouTube's activity. Basically, the service providers here are saying that Section 230 immunizes them from liability. But the petitioners would argue, no, we're not saying that you made the ISIS video. But what we are saying is that your algorithms, which direct certain content like ISIS videos to people who would be receptive and amenable to ISIS videos and thus more likely perhaps to act on them. That's all you. You do

that. That's right. And you cultivate this environment in which these kinds of videos can sort of take on a new life, can be disseminated more easily, and you're actually helping and facilitating what ISIS does. And that's what we're suing you for. Is that the argument here? That's precisely right. And it's not that YouTube is failing to remove or leaving up ISIS videos. That would be, I think in many respects, would be understood as you get the legal shield because all you're doing is, you know, you're trying to be a good Samaritan, but you're missing some content. So you're failing to remove some of it. But as you said, so well, that's not what the lawsuit is about. The lawsuit is, as petitioners would say,

and the government agrees in their amicus brief, that what we're focused on instead is YouTube's own conduct. You're cultivating a market for these offensive videos. That's right. That's essentially the theory. What's really important is that YouTube is cultivating it by using their stores, massive reservoirs of personal data. That because they have these massive reservoirs of personal data, they can then throw their algorithms against it and then say, who is most susceptible? Who, given their prior viewing habits is going to click. Videos for you, who's going to click on that? Because there are entire business models

like click and share and making money. It's how YouTube always knows I want to see the Taylor Swift video. I was just going to say that. And I want to see the cute dog video. And I want to see the drag queen video. Like those are the three. Wait, wait, wait. Is that why I'm always getting reruns of suits? You know? Yes. Right. We've solved the mystery. We've solved the mystery. Melissa Murray, you know, besties, like, there you go. I mean, that's online behavioral advertising at its finest. Right. And so the theory is it's what you're doing. You know, you're using people's data. You're getting to know them really well. You've got you've collected massive hordes of personal data. You bought it from advertisers, oh, it's just about the ISIS videos. And hey, everyone,

Section 230 is all about free speech. We could talk about how that's like they ignore the other purposes and findings of Congress in the beginning of the statute. But so that's the two different, very drastically different framings that we have here.

So, you know, when you were telling the origin story of Section 230, it was clear how the provision was intended to allow content moderation without penalizing, you know, those entities for engaging in content moderation, you know, That wouldn't actually convert them into publishers or speakers. And I guess I have a question. If the plaintiff's theory of Section 230 succeeds and these social media companies are turned into publishers or speakers when they use algorithms, is there some concern or risk for what the internet would become like without algorithms? Or, you know, if Google couldn't curate search content without incurring liability or TikTok couldn't recommend, I watch more Taylor Swift and dog videos like without incurring liability, like how are these things going to work? Right. You know, it's true, of

course, that our online environment is mediated, you know, your spellcheck, your search, your, you know, Instagram, it's mediated by algorithms. But when algorithms highlight and make money from online activity, then they would operate just like their offline counterparts do. That is, they would face liability if the threat of liability was real, right, and genuine. And of course, under C2 would remain. So they could block and filter and curate. They could clean up the internet without any worry because Section 230 C2 would continue to allow them to do it voluntarily as long as they did it in good faith. And so in some respects, we get back to the entire goal of Section 230, was to incentivize companies to moderate content rather than giving them a free pass for even soliciting illegality. That would no longer be tenable. And I think it's a resetting. It could be a resetting, I think, in an effective way. So it seems like the internet companies, at least, are somewhat concerned just based on the lineup of the briefs from the internet service providers. But they're like 70. It's almost like they have vast stores of money that they can just hire all the guns in the world for this.

Almost. So there's a heavy hitter. Yeah. Heavy hitter. But note those babes in the woods from 1995, 96, barely a thought in, you know, Wyden and Cox's eyes was, you know, Google and YouTube. They are now the dominant market players. Like, so I'm not thinking they're in their infancy. Like, who's heard of Prodigy? Yeah. Buh-bye Prodigy. It's like MySpace, WhatSpace. But now these interactive computer services, they're effectively behavioral advertisers. They have literally had a free pass. They have been scofflaws. They are allowed to make money from our data and bear no responsibility for illegality that they then make money from. It's like clicking and sharing all over the internet. And so I'm not going to cry a river, I have to say, you know, right, that the five biggest market cap

companies, almost in the world, right, might have to face internalize some of the costs that right now they externalize. Yeah, I just want to highlight so people understand like the big guns they have brought to this fight. You know, on the brief are Paul Clement and Aaron Murphy from Clement and Murphy, Lisa Blatt from Williams and Connolly, Seth Waxman from WilmerHale, Brian Willen at Wilson-Sonsini. Ted Boutreau from Gibson Dunn. I mean, the list goes on. You know, I have...

I mean, if you took out this brief the supreme court bar could literally not function like this is like all the heavy hitters are on them and i have some thoughts about what might happen at the oral argument given that lisa blatt is going to be among the lawyers arguing this case i mean danielle you said the origins of section 230 were in trying to clean up the internet from porn, no chance, no chance we go through an entire oral argument without mentions of porn and who knows what else. I can't wait. Yeah. Oh, yeah. It's going to be lit. Black Santa goes into a XXX porn video store. It's going to be like that.

On the internet. That's what's going to happen. Exactly. So when we previewed this case earlier in the year, we said it had real start the rapture energy. And I think part of that is because of one of my favorite justices, Justice Clarence Thomas, right? I mean, I think he's going to be all over this because one, he has been dying to claw back the scope of Section 230 in large part because there is this ongoing conservative narrative about how Section 230 allows these platforms, these liberal platforms to censor conservatives

from being free in their speech. So that's one part of the beef here. And I think you will see a lot of action around that. But I also think that this could be part of Justice Thomas's long husbanded effort to undermine, claw back, dismantle the New York Times versus Sullivan regime and protections for free speech for journalism more generally. So I think there's a lot going on here. And Leah is exactly right. This is going to be literally an unhinged oral argument that goes in all kinds of different directions. This seems to totally underscore, Melissa, like your characterizations of this court as the Thomas

Court and basically encouraging us all to go back and look at what that guy was writing 10 years ago, because that's gonna be the law very soon. Clarence Thomas's burn book. Yeah, exactly. Facebook is a fugly slut. And that's what's written there. I saw it. No, I didn't. But if he rolls back New York Times versus Sullivan, maybe you can sue me for saying it. I don't know. Anyways. Okay. So but you know, just an example of this, I didn't. But if he rolls back New York Times versus Sullivan, maybe you can sue me for saying it. I don't know. Anyways. Okay. So, but, you know, just an example of this, I think, is how on New York Times versus Sullivan, which is the kind of set of rules that basically insulate media companies from, you know, defamation liability about public officials if they, you know, make reasonable mistakes. That was a cause. Well, if the media companies make reasonable mistakes, and they're reporting, I'm like, if the public figures make reasonable mistakes, that's part of the coverage. That's all there. Yeah. But Justice Thomas thinks that media

companies maybe should be liable for false statements, you know, even if the media companies took reasonable precautions, you know, to guard against that risk. And Justice Thomas, again, has been calling for this. And this movement has now gained some real traction in conservative circles. You know, the set aside Sullivan movement, you know, the latest person to kind of jump on this bandwagon is Florida Governor Ron DeSantis. So again, just like part of this Justice Thomas trendsetter? So this is all to say that Section 230 is actually really interesting in that it is both a target of the left and a target of the right. So conservatives are apoplectic about what they perceive as social media platform censorship of conservatives like Donald Trump, for example, who was famously booted from Twitter in the wake of the January 6th insurrection. But lefties are also concerned about what they see as the proliferation of hate speech or white nationalism that fuels violence and radicalization. And if you want an example of this, just sort of look at the way progressives have been talking about the new Elon Musk era of Twitter,

where content moderation seems to be non-existent. So there are good arguments, I guess, on both sides and bad arguments on both sides. But this is sort of in the crosshairs of both the right and the left, which is an unusual posture that we typically don't see in a case like this. And it means that we're not really going to know where the justices are going to come from and what kinds of strange bedfellow coalitions we're going to see on this. You know, you know, though, that Justice Thomas and Justice Alito are just loving the idea of a Section 230 case that involves ISIS because they're going to be like, you censor conservatives, but you don't censor ISIS like sirs and ma'ams. Like, how dare you? Here's what I also mean about the strange bedfellows aspect. I mean, like those guys aren't strange bedfellows. We knew what they likely would say and we know how

terrorism might play into it. But I mean, just imagine, though, the prospect of an issue where Danielle's cyber civil rights initiative is filing a brief that's on the same side and is alongside a brief filed by none other than Missouri Senator and cross-country runner Josh Hawley. Like, wow, that's I mean, that's mind blowing. And here's another idea. supporting neither party, but that nonetheless advance an argument for different limits on Section 230 come from the Lawyers Committee for Civil Rights, the Giffords Center, that's Gabrielle Giffords, and the gentleman from Cancun, Ted Cruz. It's just like a wild assortment of people lined up on various parts of these issues. So again, lots of strange bedfellows energy here. Yeah. And like a lot of incoherence too, because on the one hand, at least can we go back to Justice Thomas? I think this, you'll both enjoy this. Because on the one hand, and he wrote a

response, a dissent from assert denial and malware bites versus enigma, in which he's focusing on how section 230 C1, he's taken my position, it's too broadly interpreted. It applies to everything and anything that involves ones and zeros. And it's not, you know, narrowly focused on defamation, but it's just, it's the free pass. And he doesn't like that. And at the same time, he wants to rip down the edifice. And that makes sense with the idea is he wants to rip down the edifice of New York Times versus Sullivan, because the idea is there should be more liability for harmful speech, defamatory speech online, and that platforms enabling and facilitating that tortious behavior should pay for it. But then on the other hand, the notion that,

from my understanding, that Thomas is also interested in ensuring that these platforms host all speech. That is, you know, that sort of in support of some of those state, insane state laws that, you know, requires companies, they almost treat them as public utilities, that they then have to host all like a fire hose of speech. That to me makes zero sense. I don't know how Thomas lives in that land and has all three ideas holding in his head. So a lot of- Don't censor conservatives and don't print stuff about Ginny's text messages. I mean, it's all-

Right. But then you have to host her text messages if you treat them as public utility. See what I'm saying? So I'm just befuddled. No? Yeah. So I'm just befuddled, no? Yeah, I mean, it strikes me that like people are almost too quick to say this case brings together both sides because, you know, the different parties have like different perspectives and interests.

You know, some of the complaints are about too much moderation, right? Like that's the Ted Cruz brief and like conservative grievance narrative about like how big tech censor is conservative, whereas other briefs, even though they're formally filed in favor of the same result here are saying there isn't enough moderation, like the Lawyers Committee for Civil Rights says Section 230 shouldn't apply to civil rights violations or other illegal conduct like discriminatory algorithms. But Leah, watch that nuance completely fall out. Of course it will.

Of course it will. Justice Alito is going to be like the lawyers committee for civil rights is telling me i must kill section 230 so there you go so he's for civil rights yeah woke lito you know but what's also interesting just to pick up on that thread that you know conservatives argue that they're being silenced is a there's no empirical proof of such a thing. Having worked with never, ever let facts get in the way of a good time at the Supreme Court, Danielle. No, no, no, that's totally fair. But the interest, you know, if you want to keep any of section that is section 230s, the issue in this case isn't C2. So if the purpose of the statute, and we know it is,

is, and let's go back to the title, right? Protecting a private filtering and blocking of offensive speech. Then the conservative claim is that section 230 should be repealed is really what they're saying because section 230 C2 is going to stay up, right? And it says you're immune from taking down in good faith speech you find lewd, filthy, harassing. Sorry, I'm using Congress's words, right? You're like, Danielle, what do you mean lewd, filthy, dirty, right? Objectional content. That is what Congress says in C2. But here's the thing, Danielle. Those are words that Congress use. Those are actual legal arguments. But earlier you were telling me that this is a good Samar legal arguments. But earlier, you were telling me

that this is a good Samaritan provision. And I'm pretty sure Ted Cruz and Josh Hawley are going to say they're good Samaritans. And so is Donald Trump and Marjorie Taylor Greene. And therefore, by logic, Section 230 protects them. I mean, but like, they're not, I guess Trump is truth social, right? So if he's taking down posts and saying he's doing it voluntarily and in good faith, because it's objectionable speech, then he can do it. So we've talked about some of the concerns of the internet companies. We've talked about the strange bedfellowness of the various coalitions. Although I think Leah makes a great point that there are some really important distinctions to be made even among those individuals who are lining up on the same side. Danielle, I want to talk a little bit about a different set of

concerns. So Leah's comments allude to some of the concerns that people challenging the scope of Section 230 immunity might make. And I think it'd be useful to hear a little bit more about those debates. And you've talked about some of to hear a little bit more about those debates. And you've talked about some of that in your book, The Fight for Privacy. And we talk about how judicial decisions regarding Section 230 have created the conditions that allow websites to basically not take any responsibility for their users' actions and indeed even create incentives not to protect the privacy of individuals. So can you say a little bit more about that?

And this is a perfect time to say something about the book as well. So thanks to Section 230, we have 90, I'm going to talk about some specific cases, but I thought I would just sort of lay the groundwork that not only does Section 230 ensure that websites don't have to take responsibility for their user activity. But in fact, it allows them to solicit, encourage, or keep up illegality that involves intimate privacy violations. And specifically, I'm talking about the non-consensual taping, sharing, manufacturer of images of people engaged in sex or nude. There are 9,500 sites whose raison d'etre

is intimate image abuse. And they essentially can make money. They have subscribers and they have to internalize zero of the costs that they externalize onto all the people. And 98% of all the folks on these 9,500 websites are women, are women of color, LGBTQ individuals, right? So they're externalizing all this harm and there's nothing that victims, you know, individuals whose nude photos are posted online can do about it. They can't sue the website operator. If they sue them, they are being treated as a publisher or speaker of content provided by someone else. So I think it's worth talking about a specific case just to give you a sense of the kinds of activity that some of these sites that, unlike these sites that make money off of non-consensual intimate imagery,

they're dating websites like Grindr that have engaged in basically no content moderation. And so Michael Herrick, living in New York City, he and an ex break up. And the ex begins to impersonate him on Grindr. And what he does is send men to Herrick's house, to his workplace. And he tells these men that Herrick wants to have anonymous sex. So men come to his door, over a thousand men within a 12 month period came to his door night and day saying, you told me you want to have sex. And when he explains, it's not me, it's my ex impersonating him, they get mad. And he's terrified. He has to move. He tries to get an order of protection. And essentially the courts courts don't, it takes about eight or nine months for

the courts to do anything about it. That is to get an order of protection against this ex. Grinder does nothing. Grinder never even responded to the emails except with a pro forma, thank you for your email. The Federal District Court in New York's SDNY found that, oh, well, Grindr would be treated as a publisher or speaker of the impersonated person's speech when in fact, Kerry's theory, the plaintiff's theory was the problem was the defective design of the website. Knowing with total certainty that people were going to use it to impersonate others, to violate intimate privacy. And yet they did nothing. They didn't redesign the site, right? They didn't respond. And so it went up on appeal to the Second Circuit,

which also found that Section 230C immunizes Grindr, even for a lawsuit, which at the heart of it wasn't about what was said in the imposter's posts, but rather how Grindr designed its site. Every single other gay dating website allows you to block IP addresses to ensure that you protect people from harmful impersonators. So talking about the harms associated with the internet and social media companies provides a perfect transition to talking generally about your book, The Fight for Privacy. So maybe we can just shift to doing that now. So in the book, you say, quote, civil rights are considered fundamental because they enable us to flourish

as whole individuals and active members of society. And you emphasize that not only should intimate privacy be used to fight against discrimination, but that intimate privacy is a civil right. So why did this become the foundation of your book? And how did you get to understanding it this way? Let me define first, you know, intimate privacy for us, because, you know, there's all sorts of privacy that we do and should care about. But by my lights, intimate privacy is a foundational value, and it deserves protection as a moral right, as a human right, and as a civil right. So intimate privacy refers to the privacy around how we manage the boundaries around our bodies, our health,

our innermost thoughts, which we frankly document every second. We search, we browse, we share, we text, we communicate our sexual orientation, our gender, our sexual activity, and our close relationships. And intimate privacy is, we all need it to flourish. So intimate privacy is what allows us to welcome people into our lives and companies that, you know, ferry our communications so that we can go backstage and figure out who we are. And it really matters for social esteem because if you are, you know, you want to be seen as a fully integrated whole person. I don't want to just be a fragment of myself, right? You know, if there's a photo of my genitals online with my name,

all that everyone is going to see is just me naked, right? We're going to see me as object, not as a subject, as a person with autonomy. And critically, we all need intimate privacy to form friendships and love relationships. You know, how do we get to know people? Is we unpeel the layers, right? We share stories and activities, experience, dreams, and hopes. It's without it, we can't flourish. We can't fall in love, develop relationships, enjoy self and social esteem, autonomy. And because we know that who's denied intimate privacy more often, both in corporate surveillance, individual privacy invaders and government, it's women and minorities. There's this really powerful moment in the book where you point out that people's most vulnerable, intimate, private moments are not necessarily protected by law, but the right to privacy throughout history has been invoked in ways that may actually destroy

other people's privacy. That's right. Can you expand on that comparison a bit and how it's evolved in the way that we're seeing today? Right. So in the 18th and 19th century, even into the, of course, 20th century, that is often what society would only see is the privacy of the privileged. So consider privacy, Melissa, this is your home, right? The family privacy, that concept of family privacy was invoked to prevent, you know, raising the curtains on the home. And so we couldn't, you know, arrest abusers, you know, male abusers. And so what, you know, courts would say in these decisions, you know, from the 1890s was that, you know, we couldn't arrest people because the privacy of the home, family privacy, was what mattered. Whose privacy were we talking about? We were talking about the privacy either of the man or not privacy so

much as concealment of crimes, concealment of domestic abuse. And we never asked, what about the privacy of the, and usually you might think lower to middle class white women, they had no privacy in the home, right? They were at the bidding of the husband, children around them. They probably had no privacy within those four corners and we never considered it. And at the same time, black women had no privacy at all, right? The, you know, pre-Civil War enslaved individuals, their bodies weren't their own. And so because privacy worked that way in the past, privacy is a concept we should be suspicious of, like Kitty McKinnon long has been, because she thinks it's only going to operate in ways that are equality undermining.

But consolidate power in those who have already had it. But that we all deserve intimate privacy, and especially those who have already had it. Right. But that, you know, we all deserve intimate privacy and especially those who have been denied intimate privacy. We need to see their privacy interests and in full view so that, you know, those cases about family privacy where we said we can't get into the home and arrest you. Because if we re-looked at those cases, we would look at the woman, the person who's being abused, her right to privacy, and we would see her. And we would say, you're- This is like Liz Schneider, the dark side of privacy. Griswold versus Connecticut is not the mammoth achievement we thought it was. No, it's a really interesting, and again, sort of thinking about it in the context of these cases is interesting as well.

I mean, privacy can cut both ways. And I think we're seeing that here. And speaking of privacy cutting both ways and the concept of privacy itself being used to take away other people's privacy, another kind of similar theme you identify in the book is how free speech has also been a concept that has been used to take away privacy from historically excluded, subordinated or marginalized groups. So can you also elaborate on, you know, this dynamic, the push and pull between privacy and free speech? Right. So how, you know, the ways in which we see

intimate privacy and free speech being used to reinforce power and privilege at every step. I used to joke, or maybe I still joke, that the First Amendment is like a soul-sucking virus. You know, whenever we invoke it, it's like eats up the whole room. And that's been certainly true in discussions and debates about rape videos on Pornhub. Pornhub's response to videos that showed even people who are under 18 being raped. So the response of Pornhub was, it's free speech. That seems baffling to me when what we're talking about is coerced sexual expression and coerced sexual activity

where it has no value to self-governance. We're not going to figure out how to live in the world and culturally, politically, socially. It is the taping of a crime. The fact that Pornhub felt comfortable saying publicly, this is free speech and this is somebody's like kink is actually mind-blowing. It's where the First Amendment has been turned in a free pass for the powerful. So everything is speech. And in some ways, that's the 230 debate as well. But of course, it's about corporate surveillance of intimate life and then corporate surveillance as a handmaid into government and government itself as an intimate privacy invader. So, you know, we talked about Grindr and its failure to design its site

to protect individuals. Grindr, of course, on its profile, collects what tribe you're in and your sexual preferences. It stores nude photos, and it also encourages people to include their HIV status. Now, Grindr, if you look at its terms of service, they're selling all of that information to advertisers, marketers, and in turn being sold to data brokers. And when the Wall Street Journal did a story about Grindr's data practices,

and so many people were like, I'm taking away my HIV profile. It's only going to hurt me. It's a one-way route to discrimination. So I wanted to make sure, and of course, post-Dobbs, that the reservoirs of intimate data, now they feed, they already, law enforcement already buys access to data brokers, federal, state, local. And all of those data brokers in their profiles have information about individuals' abortions, their miscarriages, like granular profiles about us, our dating habits, our, you know, our period tracking app information, our geologue, their location data brokers. So if you've gone to a clinic, then you go to CVS a week later and you get your tampons. All of that is helpful circumstantial evidence in cases where we're trying to prosecute a provider. We're trying to in states where you can prosecute, you know, the person getting the abortion for civil penalties. And so my world got worse, I have to say. So with a nod to the wide ranging and expansive nature of the book, which everyone should check out, that is probably all the time

we have for this particular segment. So Danielle, thank you so much for joining us. And listeners, please be sure to check out her book, The Fight for Privacy. Thanks again, Danielle. Thank you so much for having me. And it's wonderful to be with you both. So these are the only cases that the court is going to hear the first week of the February argument session. It will be hearing some additional cases, including the major student loan cases the second week of the February argument session, and we will preview those cases on the next episode. But right now, we want to just tell you to gird your loins because we are going to get

opinions this week. So on Wednesday, the court's going to issue some opinions. And we don't know what opinions we're going to get, but we know that with this court, it's worth bracing for impact. So just prepare yourselves. We also wanted to cover some court culture because in the last month, we have learned some additional things. So I'll start. So CNN reported that Jane Roberts, the wife of Chief Justice John Roberts, is a legal recruiter. That wasn't news to anyone. We knew that. But what was news was that Mrs. Roberts, in her role as legal recruiter, often places lawyers at law firms that have active Supreme Court practices and present cases before the court.

And that this bit of news wasn't necessarily disclosed in previous filings. And, you know, the interwebs were making quite a lot of this a couple of weeks ago, Leah. And I was just sort of like, is this, I mean, is she really the Ginny Thomas of Martha Ann Alito's? I don't know. I don't think so. No, I don't think so. I mean, I think it was probably some type of unforced error not to disclose this in some capacity. But the idea that she is helping lawyers get jobs at these humongous, like literally humongous law firms seems pretty different to me as far as likelihood of bias in a case where, say, your spouse is actively pushing for a position that's being litigated at the court, just hypothetically. Although, of course, this does, you know, highlight the smaller professional and social milieu of the court. But again, I just don't. Yeah, I also think again, too, like, I mean, it can't be the case that your partner becomes a justice of the Supreme Court Court and you literally have to live under a rock.

I mean, I think we all should aspire to Cecilia Souillette Marshall. Like, you know, I was very careful. I didn't socialize with people who are going to be before the court. But, I mean, it's DC if you're a lawyer. Like, you can either be in the government, which is unlikely because of who your husband is. You can be at a law firm, which maybe that's incompatible with the fact that your husband's a chief justice and you have kids or whatnot. Who knows? But it seems like being a legal recruiter and placing people in these positions is not that far of a stretch. But yes, do disclose it. We'd like to know.

Yeah. So other pieces of news, we got a little bit more drip, drip, drip about that leak investigation, didn't we? I mean, OK, I'm just going to say, like, did I not call this one? Because when they started talking about how Michael Chertoff, the former secretary of Homeland Security, was called in to review the Marshall's bootleg investigation. I was like, well, that's weird when he's an actual professional at security and maybe he could have done his own independent investigation. And that might have been better than the Marshall's investigation, not to cast shade on the Marshall, but come on. And now we're finding out that Chertoff was paid and has had an existing relationship with the court to provide security services. So he might have actually been in a really good position to do an independent investigation. But it really does seem to raise

questions about how independent his separate independent review of the Marshalls investigation was. I mean, this is, again, just come on, guys, like get it together. I mean, look, he could have called all of the clerks into a room and asked them, did you do it? Did you do it? You know, on the other hand, he's like, the Marshall did that for me. So this all seems great. Yeah, perf. No notes. No notes. No notes.

No notes. Some additional reporting by CNN, The Washington Post, as well as The New York Times, all, again, kind of focusing on the Supreme Court's investigation into the Dobbs leak, has revealed that, among other things, the justices use their personal email for work business and no one felt they could say anything about that since they're all justices of the Supreme Court. I'm just going to say what I know everyone is thinking, but her fucking email. Oh my God. What the actual? Where is Jim Comey when you need him? Where is his press conference? I at least expected some tweets.

I just can't even imagine like, you know, the chief at gmail.com. Let me send some stuff to myself at home. Yeah. It's, it's very heartening to me that these are the justices deciding the major technology cases like Section 230 who continue to use their personal email for work because transitioning to a work email server is just a little bit hard. I'm still back on the printers are not networked. I know. Love it. Love it. I mean, I... Yeah.

Also, there was reporting on the burn bags. So burn bags are these large receptacles where you put sensitive material. And the idea is that they're going to be taken off-site to be either burned, hence the term burn bag, or otherwise shredded so that their contents cannot later be known. But it turns out the Supreme Court does use burn bags, so check. But, and it's a big but, it takes these burn bags in which it places sensitive items like draft opinions, if you will, and leaves them out for a long time. So these are technically not really burn bags, but sort of smoldering ember bags that they allow to lie around for apparently long periods of time before they're then actually

taken away so the sensitive materials contained within can be destroyed. So I'm going to say security is looking pretty great here, fellas. Again, Michael chertoff looked at this and said you're doing amazing sweetie you're doing amazing you joke but i have to say i bet chris jenner would clean this shit up oh yeah the momager would not stand for this kind of, nothing leaks unless I want it to. Exactly. Exactly. Right? Yeah, exactly. Yeah. Anyway. Okay.

So one additional thing we wanted to know, kind of part of the piece of will the court break the internet theme of this episode is the court is discussing a cert petition currently in a case we have briefly alluded to before. The case is called Novak v. City of Parma. And this is a case where some police officers arrested someone and put them in jail for making a Facebook page parodying the police department. This is like the stuff of Sam alito's dreams he's like can i put everyone in jail for making fun of me i hope we get to be sellies

uh yeah after my acceptance speech for our ambies you know i i'm definitely gonna make make the list um okay so anyways the as i was saying the police officers arrested someone and put them in jail for making a funny on the internet. And the U.S. Court of Appeals for the Sixth Circuit said the officers, who were, of course, sued for arresting someone for making a joke, the Sixth Circuit said, you actually can't sue the officers. They are entitled to qualified immunity because the parody page didn't have like a big caption or warning on it that said parody. And therefore, the officers didn't realize they couldn't arrest this guy for making fun of them. The creator of the page was like, dude, I thought all of the pictures of bacon was the tip off that it was a parody um so anyway we had previously discussed this case because again we just referred to the then filed amicus brief by the onion and if you didn't go check out the brief, then listeners, do so. You missed out. Do so now. It is so. It is the best,

the absolute best. It is so funny. I mean, the table of contents is funny. It's hilarious. Hilarious. The introduction, the statement of their interest in the case is hilarious. It should have its own Netflix special. That's how funny it is. It's like we read a lot of these briefs and I'm going to say they're not all great. This brief is like 100% a banger. Go get it. And I have to just play a few of the hits because it's that good. Okay, go, go, go, go. This is from the section of the brief where you're just supposed to say, I'm a funny news organization that often writes parody and therefore I have an interest in free speech. This is the Onion's take on the interests of the Amiga Curiae section. Rising from its humble beginnings as a print newspaper in 1756, the Onion now enjoys a daily readership of 4.3 trillion and has grown into the single most powerful and

influential organization in human history. The Onion's keen fact-driven reportage has been cited favorably by one or more local courts, as well as Iran and the Chinese state-run media. I mean, it's just this amazing brief that goes in and out of different voices, like at some points engaging in parody, at other points, like walking the reader through a description of parody. It's just so amazing. Here's another part, introduction and summary of argument. Like this is usually the most anodyne part of the brief where they just sort of tell you what the argument is. This is what The Onion says. Americans can be put in jail for poking fun at the government. This was a surprise to America's finest news source and an uncomfortable learning experience for its editorial team. I mean, it's the whole thing is hilarious and really well written. It's extremely well written. It's exceptionally well done. I mean, it perfectly demonstrates why you can't have parody without some deception, without pulling one over the audience.

It's so good. It's just incredible. The conclusion, the petition for certiorari should be granted, the rights of the people vindicated, and various historical wrongs remedied. The Onion would welcome any one of the three, particularly the first. You know, co-host privilege, I'm just going to note two other things about the brief super quickly. The beginning of the argument section reads as follows. To Stoltis S., you are dumb. The argument section starts out and then it proceeds to say, it goes to quote some Latin phrases. And it says, the Onion's motto is central to this brief for two important reasons. First, it's Latin, and the Onion knows that the federal judiciary is staffed entirely by total Latin dorks. They sweetly whisper, quote, stare decisis into their spouses' ears.

I died. I died. I mean. That was very funny. Okay. Co-host privilege. Here's my last one. We really are going to end this episode.

Okay. This is a footnote. The Onion's journalists have garnered a sterling reputation for accurately forecasting future events. One such coup, I like how they use the word coup, was The Onion's scoop revealing that a former president kept nuclear secrets strewn around his beach home's basement three years before it even happened. Footnote two, see Mar-a-Lago assistant manager wondering if anyone coming to collect nuclear briefcase from lost and found. March 27th, 2017, the onion. It's so good. Do yourself a favor. We don't often get to just laugh when we're thinking about the Supreme Court. And this brief will give you an occasion to. I just want to know, the Council of Record here is one Stephen J. Van Stempvoort of Miller Johnson. Also on the brief is D. Andrew Portinga.

A Michigan law alum. Go blue. Is this Michigan law alum actually writing these jokes or are they getting an assist from the client here? You know, attorney-client privilege. I don't know. Crime fraud. Exactly. There has been a murder here and it is before it's reasoning. Yeah. Anyway, open invitation, fellas, to come on the pod to talk about this. Bring your clients with you. We will have a good time. This brief was a banger.

It was. And Lisa Blatt is going to take that energy and put it into the Section 230 argument. So listeners, you're in for a treat. All right, listeners, that's all we have for you. Thanks so much for listening today. And many thanks to Danielle Citron for joining us. Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Lippman, me, Melissa Murray, and Kate Shaw, who was not here today.

That's why this was so out of control. It is produced and edited by Melody Rowell, audio engineering by Kyle Seglin, and music by Eddie Cooper, with production support from Ashley Mizuo, Michael Martinez, Sandy Gerard, and Ari Schwartz, and digital support from Amelia Montu. We'll see you later.