UNBIASED - Can States Prohibit Social Media Platforms From Censoring Opposing Viewpoints? The Supreme Court Just Heard Oral Arguments and Here's How The Justices Are Feeling. Plus More.

Episode Date: February 27, 2024

1. DEEP DIVE: Supreme Court to Decide Whether States Can Ban Social Media Censorship of Opposing Viewpoints (1:08)2. QUICK HITTERS: Air Force Member Sets Self on Fire Outside Israel Embassy in DC (18:54); Republican National Committee Chair and Co-Chair to Step Down Following South Carolina Primary (19:56); Donald Trump Wins South Carolina Primary, Super PAC Pulls Funding From Haley (21:46); FTC Sues to Block $25B Kroger/Albertsons Merger (22:57); United States Will Soon Lose Communication with Private Moon Lander (24:21); Trump and Co-Defendants Appeal Engoron's NYC Judgment (25:15)If you enjoyed this episode, please leave me a review and share it with those you know that also appreciate unbiased news!Watch this episode on YouTube.Follow Jordan on Instagram and TikTok.All sources for this episode can be found here.  Learn more about your ad choices. Visit podcastchoices.com/adchoices

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call the Conax Ontario helpline at 1-866-531-2600. BetMGM operates pursuant to an operating agreement with iGaming Ontario. Welcome back to Unbiased, your favorite source of unbiased news and legal analysis. I'm your host, Jordan, and I hope you enjoy the show. Welcome back to Unbiased. Today is Tuesday, February 27th, 2024. This episode was recorded yesterday around 5 p.m. Eastern time. In today's episode, we're first going to take a deep dive into the oral arguments that were presented to the Supreme Court yesterday in two cases dealing with censorship on social media and state regulation. And then we'll move on to and finish with quick hitters,

so only two segments today, and that'll be today's episode. Before we get into it, this is your reminder that if you love what you hear today and you feel smarter after listening, please go ahead and leave me a review on whatever platform you listen on. Or if you are a YouTube watcher, hit that thumbs up button, subscribe to the channel if you haven't already. All of those things really help support this platform. So thank you so much in advance. And without further ado, let's get into today's stories. On Monday, the Supreme Court heard oral arguments in two cases dealing with the constitutionality of laws which seek to regulate how social media platforms

regulate speech. One of the cases, NetChoice v. Paxton, is out of Texas. The other, Moody versus NetChoice, is out of Florida. So NetChoice is the organization representing the tech companies. Its stated mission is to make the internet safe for free expression and free enterprise. The case out of Texas is against Paxton because Ken Paxton is the Attorney General of Texas, whereas the case out of Florida is against Moody because, you guessed it, Ashley Moody is the Attorney General out of Florida. So those are the parties in the case. Now, here is the question for the court.

It all boils down to, can states tell social media platforms what content they can and cannot regulate on their platforms? Or is it up to the social media platforms to decide this for themselves? So let's first start with the background of the cases. And we'll start with the Texas case first. But just know that in both cases, Texas and Florida enacted their own laws due to what they felt was censorship by social media platforms of conservative viewpoints specifically. Both laws were enacted in 2021. Texas's law, which is called House Bill 20, applies to platforms with more than 50 million monthly active users. And you'll see Florida has a slightly different requirement, but that is what constitutes a platform for purposes of this Texas law. Among its various provisions, the law lays out various

reporting requirements for these platforms, so a biannual reporting requirement, and it also lays out a framework for a complaint system, specifically a system in which users would be able to submit complaints relatively easily about illegal activity or illegal content on the app. The status of those complaints would be tracked, and the platform's decision would have to be made within 48 hours of that complaint being filed, not including weekends. But those are some of the requirements that this law lays out, aside from the most controversial provision, which is this. Section 143A.002 says, quote, may not censor a user, a user's expression, or a user's ability to receive the expression of another person based on the viewpoint of the user or another person, the viewpoint represented in

the user's expression or another person's expression, or a user's geographic location in this state or any part of the state. End quote. AKA, in the simplest of terms, social media platforms cannot censor a user because of that user's viewpoint or expression. So once this law was signed by Texas's governor, the tech companies immediately sue alleging violations of the First Amendment. On appeal, the Fifth Circuit Court of Appeals disagreed with the tech companies, and the Fifth Circuit upheld the law. The tech companies then took it to the Supreme Court, and here we are.

Out of Florida, the law looks slightly different. It's called SB 7072, and it applies to platforms that either have at least 100 million monthly users globally, or annual gross revenue in excess of 100 million dollars. But the main difference between Florida's law and Texas's law is that Florida's law is geared towards political candidates specifically. So rather than a general focus on social media users, it's more honed in on the suppression or censorship of political candidates. Florida's law does give social media users the ability to sue platforms when they believe that they've been censored, but when it comes to actually prohibiting censorship in the text of the law, Florida's law

specifically prohibits the censorship or banning of political candidates. And again, similar situation. The tech companies sued Florida's attorney general, challenging the law's constitutionality, and on appeal, the 11th Circuit Court of Appeals did it a little bit differently. They found that the main provisions of the law likely do violate the First Amendment and prohibited Florida from enforcing a majority of this law. So this time, it's the state of Florida that takes it to the Supreme Court. So now we have conflicting rulings out of the 11th Circuit and the 5th Circuit. And oftentimes, when appellate circuits are split, the Supreme Court will intervene and

settle it. Because the arguments in both cases are pretty similar, I'm just going to review these arguments as if this was one case. First, we'll start with the overview of the arguments, and then we'll get into sort of the issues that the justices brought up, and what some of their concerns were, and then in which direction were they leaning, if at all. So first, the tech companies. The tech companies argue that these laws violate the First Amendment because the laws essentially tell the companies or these platforms what they can and cannot say. They say that the sole purpose of the First Amendment is to protect the rights of private companies to decide what messages they will or will not disseminate.

They say every day they take on billions of editorial decisions. First, they make judgments about what content they will remove. And second, they make judgments about how that remaining content appears on their platforms. And they say these new laws interfere with their right to exercise that editorial discretion. In particular, they say the laws require the platforms to disseminate virtually all speech by the state's preferred speakers, no matter how blatantly or repeatedly the speaker violates the particular site's terms of use. And in support of their argument for editorial discretion and, you know, a violation of their First Amendment, they cite to various Supreme Court cases in which the court recognizes that the First Amendment protects the right to editorial judgment. One case they cited to was a challenge to a state law out of Florida that required newspapers to give political candidates a right to reply whenever the

newspaper criticized them. The Supreme Court struck down the law, and it held that the government had no business regulating the editorial content and judgment of the newspaper. So in referencing that precedent, the tech companies wrote in their brief, quote, just as Florida may not tell the New York Times what opinion pieces to publish or Fox News what interviews to air, it may not tell Facebook or YouTube what content to disseminate, end quote. Another case the tech companies cited too was one in which the Supreme Court held that a state cannot require private organizers of a parade to allow a group to participate in that parade when the organizers don't approve of the group's message. And in comparing that case to their own, the tech companies essentially argue that just like the state couldn't require the parade

organizers to allow groups to participate in the parade, the state can't require social media platforms to allow certain users to participate on the platform when the platform doesn't agree with the message of that user. So again, the tech companies really focus on the argument that the government is violating their First Amendment rights by telling them what content they can and cannot moderate. The states, on the other hand, they are arguing that the First Amendment doesn't even apply here because the laws don't restrict speech. The laws restrict conduct. In other words, the laws aren't telling these platforms what they can or can't say. The laws are simply requiring that the platforms host speech to allow speech. So in support of their argument, they cite to their own Supreme Court cases, which support their position. One of the cases that was cited too was one in which the court held that shopping malls have to allow students to convene in the public area of the mall to solicit signatures for a political petition, even if the mall disagreed with the purpose of the petition.

Another case that the state cited too was one in which the court upheld a federal law that required law schools to either choose between having military recruiters on campus or forfeiting their federal funding. And the reason that the states are citing to this case is because they're essentially arguing that there have been circumstances in which the state or the federal government has required the hosting of speech and not violated the First Amendment. So that's what they say they're doing here. They're just requiring that platforms host speech. They're not violating the First Amendment. The states also assert a common carrier argument.

Common carriers are entities or people that undertake as a regular business the transportation of people or commodities from place to place and offer those services to all people. The most common example of a common carrier is a phone company. And the reason that the states put forth this argument that social media platforms fall under this common carrier category is because historically common carriers have been subject to state regulation. And in this case, the states say because social media platforms are common carriers providing their service to all users, we can impose this requirement that they not discriminate against certain users based on

viewpoint or expression. Similar to how, you know, a cell phone provider like Verizon Wireless couldn't discriminate against users based on viewpoint or expression. Common carriers are just treated differently. So where the platforms argue that they should be treated like newspapers or publishers who have this First Amendment right to make editorial decisions, the states argue that platforms should actually be treated like common carriers, which are required to transmit content across networks regardless of viewpoint and are subject to more regulation. So now that we know that, let's discuss what some of the justices' concerns were. Sometimes when I recap these arguments, it's fairly easy to say which way the justices were leaning. In some cases, it's harder to tell, and this is one of those cases.

The justices did seem very conflicted, but there were two main themes shining through in a lot of the justices' questions. The first was the scope of the laws. For the most part, the justices felt that these laws were overbroad. The second theme was this question of whether social media companies are even engaging in First Amendment protected activity when they moderate content. In other words, does the First Amendment protect censoring and deplatforming users? Is the First Amendment actually an issue here? So first, let's talk about the scope concern, and then we'll get into the First Amendment concern and some other concerns. But Justice Sotomayor was the first to bring up the broad nature of Florida's law in particular. She said, quote, this is so, so broad. It's covering almost everything. The one thing I

know about the internet is that its variety is infinite, end quote. And she brought up Etsy as an example, because she said this is something that's an online shopping marketplace, but it's not your traditional social media platform. So how could this law affect Etsy's ability to block people in Florida from selling products that violate the website's terms of service? In other words, would Etsy just have to allow all sellers of products, regardless of whether a seller violates Etsy's terms of allow all sellers of products regardless of whether a seller violates Etsy's terms of service because of this law? Justice Barrett expressed similar concerns. She said, quote, Florida's law, so far as I can understand it, is very broad. We're talking about

the classic social media platforms, but it looks to me like it could cover Uber. It could cover Google's search engine, Amazon web services, and all of those things would look very different. End quote. For example, if the court sided with the tech companies, Gmail could hypothetically just decide to delete accounts that it doesn't agree with, or Venmo could not provide its financial services to certain people. So the justices weren't necessarily ready to strike down the law in its entirety, but again, they were very conflicted. Justice Barrett expressed some concern over the difference between conduct and speech in the modern world of

algorithms and social media. So she cited to a hypothetical in which, let's just say, TikTok used an algorithm to promote pro-Palestine posts over pro-Israel posts. And she asked, if you have an algorithm, do it. Is it not speech? And Justice Thomas echoed that same thought. As to whether the First Amendment even applies here, a few of the justices were a bit skeptical. Justice Kavanaugh mentioned that the First Amendment's prohibition on barring speech applies to government action, not action taken by private companies. Chief Justice Roberts said, quote, the First Amendment restricts what the government can do. What the government is doing here is saying you must do this. You must carry these people. You have to explain yourself if you don't. That's not the

First Amendment, end quote. And the irony here, you know, when we're talking about the First Amendment is that the First Amendment was designed to prevent speech suppression, right? And by the government, at least. And in this case, the states are essentially trying to prevent social media platforms from suppressing certain speech. Now, of course, social media platforms from suppressing certain speech. Now, of course, social media platforms don't have to abide by the First Amendment because they're private companies. The First Amendment binds the government. But in a weird way, it's almost like these states created these laws as a way to create a First Amendment protection for users on social media. But, and this is where the irony

comes in, the social media platforms are saying that by doing that, the government is violating the First Amendment rights of the platform, right? So it's a little bit, there's a little bit of irony happening here. And Justice Alito kind of hinted at this too. He said to the attorney representing the tech groups, he said, quote, it's your message when you want to escape state regulations, but it's not your message when you want to escape liability, end quote. And that comment was referring to free speech and section 230, which social media companies just argued over last year. In essence, the social media platform successfully argued that they shouldn't be held liable for the content posted to their platforms because their users have a right to free speech. And it ultimately went in their favor, but now they're kind of arguing the

flip side of it, that, you know, they have free speech rights to restrict the content on their platforms. So that's why Justice Alito made that comment. Alito also suggested a worry about Orwellian private conduct, which then led Justice Kavanaugh to kind of chime in and say when he thinks of Orwellian, he thinks of the opposite. He thinks of state rather than the private sector, kind of like when a government takes over the media. And he said, we don't want our country to turn into that. Justice Kagan seemed bought into the idea that social media platforms resemble newspapers and publishers and therefore should be afforded some sort of editorial discretion. Justices Barrett and Kavanaugh also agreed with the sentiment. Kagan also cited to Twitter's shift to X and how it's changed since Elon Musk took over.

And she was signaling that that change can be seen as the company's own speech, which would be protected from government intrusion. She said, quote, Twitter users one day woke up and found themselves to be ex-users. All of a sudden, they were getting a different online newspaper, so to speak, every morning, end quote. So really, the justices have a lot on their plate with this one. They're going to have to evaluate whether content moderation is even afforded First Amendment

protection, and if content moderation is afforded First Amendment protection, whether these laws violate it, and then finally, whether these laws are too broad and need to be narrowed in scope, in which case they may send the case back down to the lower court to figure it out, but the justices did signal that even if they made a decision on this, it likely wouldn't be the end of the road with these issues. And the Supreme Court does have one more social media case to hear this term, which is a case filed by Louisiana and Missouri against the Biden administration. Oral arguments in that case are scheduled for March 18th, so just about a month, a little less than a month away, and the Supreme Court will have to decide whether the Biden administration violated the Constitution

when it pressured social media platforms to remove content from their respective platforms, which federal officials deemed to be false or misleading about the election and the pandemic. Okay, so enough about social media and the Supreme Court. Let's move on to quick hitters. Quick hitter number one, a 25-year-old U.S. Air Force member Aaron Bushnell died on Sunday after setting himself on fire in front of the Israeli embassy in D.C. in an act of protest against the war in Gaza. In the moments leading up to the incident, Bushnell apparently started a live stream on the social media platform Twitch, where he said in part, quote, I will no longer be complicit in genocide. I am about to engage in an extreme act of protest,

but compared to what people have been experiencing in Palestine at the hands of their colonizers is not extreme at all. End quote. Bushnell then went to the Israeli embassy wearing camouflage, poured a flammable substance on himself, and then set him on fire while repeatedly yelling free Palestine. On-site personnel ran towards him with fire extinguishers to try to save him, but by then he was in critical condition. He was rushed to a local hospital where he later died. Quick hitter number two, Republican National Committee Chair Ronna McDaniel and co-chair Drew McKissick both said Monday that they would be stepping down from their positions. Both McDaniel and McKissick said they will step down on March 8th at the Republican

Party's spring training in Houston. Now, McDaniel's decision, it was expected, and it comes roughly two weeks after Trump announced he was endorsing North Carolina GOP chairman Michael Whatley to be the next chairman of the RNC. He was endorsing his daughter-in-law, Laura Trump, to be the co-chair and his top campaign aide, Chris LaCivita, to be the party's COO. The reason that I say her decision was expected is because she had previously offered earlier this month to step down from her position once the South Carolina primary was over. Trump had also told Fox News around that time that some changes were likely to happen at the RNC. Specifically, he said that McDaniel had done okay in the RNC initially, but that right now there will probably

be changes made. Following that is when Trump announced his endorsements. And at that point, it was pretty clear that McDaniel wouldn't be staying. So she said in a statement on Monday, in part, quote, I have decided to step aside at our spring training on March 8th in Houston to allow our nominee to select a chair of their choosing. The RNC has historically undergone change once we have a nominee, and it has always been my intention to honor that tradition, end quote. And shortly after that announcement is when co-chair McKissick

made his announcement. So obviously, you know, McDaniel mentioned that when there's a nominee, there is a change. And we, of course, know that Trump is not yet the official nominee, but all signs are pointing in that direction, especially following the South Carolina primary, which is a great segue into quick hitter number three, which is Donald Trump beat Nikki Haley in the South Carolina Republican primary with the win. Obviously, South Carolina is her home state, but the final tally showed Trump garnered roughly 60% of the votes, whereas Haley locked in roughly 40% of the votes. Haley has committed to staying in the race despite her loss. She said Saturday, quote, I'm a woman of my word. I'm not giving up this fight when a majority of Americans disapprove of both Trump and Biden, end quote. In the 24 hours following her loss, Haley's campaign said it had raised $1 million from grassroots supporters alone,

but it wasn't all good news for Haley because Americans for Prosperity, who was the PAC backing her, also announced Sunday that it would be redirecting funds away from Haley's presidential bid and towards congressional campaigns. The next primary is today, February 27th in Michigan. Michigan will also hold a Republican caucus on March 2nd, along with Idaho and Missouri. Quick hitter number four, the FTC filed a lawsuit on Monday to block the $25 billion deal merger, I should say, between Kroger and Albertsons. By Monday afternoon, Arizona and Nevada had joined the suit. So what the lawsuit says is that what would be the largest supermarket merger in the country's history would essentially eliminate competition in the grocery industry and therefore lead

to higher prices for consumers, store closures, and job losses. This merger was announced back in 2022 when the two companies said they wanted to merge to be more competitive against mostly ununionized giants like Walmart, Amazon, and Costco. And at the time, the CEO of Kroger said the merger would accelerate its position as a, quote, more compelling alternative to larger and non-union competitors, end quote. Following the filing of the lawsuit on Monday, Kroger released a statement that said in part, quote, contrary to the FTC's statements, blocking Kroger's merger with Albertson's companies will actually harm the very people the FTC purports to serve,

America's consumers and workers. The FTC's decision makes it more likely that America's consumers will see higher food prices and fewer grocery stores at a time when the communities across the country are already facing high inflation and food deserts. End quote. Quick hitter number five, communications with the private moon lander Odysseus, which landed on the moon last Thursday, are expected to end Tuesday morning. Originally Intuitive Machines, which is the private company responsible for Odysseus, said it was hoping the lander would be able to operate for about nine or 10 days in a best case scenario, but the lander landed sideways following a navigation glitch, which resulted in

the vehicle's solar panels no longer being in a prime position for sun exposure, and following that, it just wasn't looking as good. In an update on the status of the mission posted Monday, Intuitive Machines wrote, quote, flight controllers intend to collect data until the lander's solar panels are no longer exposed to light. Based on Earth and Moon positioning, we believe flight controllers will continue to communicate with Odysseus until Tuesday morning. End quote. And the sixth and final quick hitter I have for you is that, as expected, on Monday, Donald Trump's attorneys filed the notice of appeal of the $354 million judgment that was issued against him last week by Judge Arthur Engeron in New York. His two sons and two Trump Organization officials also

appealed the decision. And in the court filing, the attorney said that they were asking the appellate court to decide whether Judge Engeron committed errors of law and or fact, and whether he abused his discretion or acted in excess of his jurisdiction in coming to his conclusions. As of now and until Trump either gets an appeal bond or puts up the money, the judgment is actively accruing interest of over $100,000 per day. That is what I have for you today. Thank you so much for being here. Have a fantastic week, and I will talk to you on Friday.