UNBIASED - June 26, 2024: Supreme Court's Social Media Suppression Decision Explained, SCOTUS Accidentally Releases Abortion Decision, RFK Jr. To Hold His Own Debate, DNC Emails Now Unavailable on WikiLeaks, and More.

Episode Date: June 26, 2024

1. End-Of-Term Update From SCOTUS/Abortion Ruling Mistakenly Uploaded (2:00)2. Snyder vs. United States: SCOTUS Says Gratuities for Public Officials Not Criminalized Like Bribes (5:17)3. Murthy vs. Missouri: SCOTUS Says Plaintiffs Lacked Standing to Sue Biden Administration Over Social Media Content Suppression (10:21)4. Quick Hitters: RFK Jr. to Hold His Own Debate, Julian Assange Goes Free; DNC Emails Unavailable Following Plea, Texas to Execute Death Row Inmate Via Lethal Injection, Venezuelan Illegal Immigrants' Bond Set at $10M for Murder, Evan Gershkovich's Trial Begins in Russia (22:04)SHOP THE LIMITED-EDITION 'UNBIASED' HAT NOW: SHOP HERE.Support ‘UNBIASED’ on Patreon.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 Connex 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. Welcome back to Unbiased. Today is Wednesday, June 26th. This is your daily news rundown, and my limited edition hats are officially live. So by the time you're listening to this episode, you can head over to unbiasedshop.com. The shop will be live. You'll be able to get a hat for yourself. I want to say a couple of things though. Number one, the quality of these hats was number one priority for me. Because of that, I went through multiple rounds of design and sampling just to make sure the stitching,

the structure, everything was up to my standards. So I just want you to know that a lot of love went into these hats. I wanted to make sure everything was perfect. Also, people who sell merch will often go overseas just, you know, for manufacturing cost-saving purposes. It was important to me that these hats were made in the USA. So just know that when you order a hat, you're not only supporting me, you're also supporting a business here in the United States, and you are getting what you pay for. Now, this is technically a pre-order, so the hats will ship in about two weeks. Depending on where you live, whether you're on the west coast, east coast, or somewhere in the middle, expect to receive your hat between two and three weeks from when you place your order. You'll get a shipping

confirmation once it does ship, but I just wanted to make you aware of that. Thank you so much for your support, truly, whether you're buying the hat just because you like the way it looks, you know, you think it's a cool hat, or you're buying it just to show your support for me. Please just know that I appreciate you so much. And again, you can shop those hats at unbiasedshop.com. The link is available for you in this episode description. Also, as a final note, I will be going live on Instagram tomorrow night for a portion of the presidential debate. So feel free to join me. It'll be on Instagram at Jordan is my lawyer.

I don't know if you'll get a notification when I do go live, but you can just go to my profile when the debate is on and click on my profile picture and you'll be able to tune into my live. And now without further ado, let's get into today's stories, which have an incredibly heavy focus on the Supreme Court. So the Supreme Court kicked off a three-day run of releasing decisions this morning. But before we talk about which decisions were released, I do want to quickly talk about what we typically see at the end of the court session and why this term is shaping up a little differently

than we may be used to. So the court's term starts in October, and it runs through usually the end of June. Basically, the court will hear arguments in various cases from October through the end of April, and throughout that time, they can and they will issue some decisions in those cases, but typically they reserve the majority of their decisions for May and June once oral arguments are over. They'll start releasing decisions in the less controversial cases in May, and then they'll slowly get into some of the more heated cases by mid-June. But then once the end of June hits, that's when the controversial decisions come out. Because obviously, the less controversial

the decision, the less time it takes to write, the more controversial decision, the longer it takes to write. Now, usually the court is done by the end of June. By the last day of June, they've gotten all of their decisions out for that term. In the last seven years, there's only been two years that the justices have continued releasing decisions into July 2019 and 2020. But it looks like that's going to be the case this year as well. After today, the court still has 11 opinions to release. They have two more opinion days scheduled for this week, tomorrow and Friday, but they rarely ever release more than four opinions in a day. They can, it's just rare. So even if they release, let's say four tomorrow and four Friday, that still leaves three more opinions, which would take us into the first week of July.

At this point, though, it's hard to say how many opinions the court is going to release on any given day. If you would have asked me yesterday how many cases or how many opinions I thought the Supreme Court was going to release today, I would have said at least three, but we only got two. So we don't really know. Expect the court to finish with their opinions next week rather than this week. I think that's a fair assumption at this point. But again, as I always say, you never really know. One last thing before we get into today's decisions. There seemed to be another opinion leak at the court today. We all probably remember the leak of the Dobbs decision in 2022. That one was a little more intentional, it seems. Today, it just seemed to be a mistake.

But today, the opinion in the Idaho abortion case was briefly uploaded to the Supreme Court's website before it was quickly taken down. In a copy of that document, which was obtained by Bloomberg, the justices voted 6-3 to dismiss the case. That decision would reinstate a lower court order that ensured hospitals in the state could still perform emergency abortions to protect the health of the mother, despite state law saying the contrary. Note, though, that document was not a final opinion. It could differ once the final opinion is ultimately uploaded, but I truthfully don't anticipate it looking too different than the one that was mistakenly uploaded today. As far as the facts of that case go, I'll reserve the deep dive for when the court does release the opinion, which very well may be tomorrow now that it's been, you know, mistakenly uploaded. So stay tuned for that.

That's when we'll go through the facts of that case. But with that out of the way, let's now talk about the decisions released today. The justices released opinions in Murthy versus Missouri and Snyder v. United States, in that order. We're going to start with Snyder, though, because it's a quicker explanation. Murthy's a little bit longer. Snyder v. United States was a case about the construction of a federal bribery law and what it prohibits. Chapter 18, Section 666 of the United States Code makes it a crime for officials to corruptly solicit, accept, or agree to accept anything of value intending to be influenced or rewarded in connection with

any official business or transaction worth $5,000 or more. Now, federal and state law distinguish between bribes and gratuities. As the Supreme Court notes in its opinion today, bribes are typically payments made or agreed to before an official act in order to influence the public official with respect to the future act, whereas gratuities are typically payments made to a public official after an official act as sort of a reward or token of appreciation. In this case, James Snyder was the former mayor of Portage, Indiana. He awarded contracts to a local truck company and purchased trash trucks from the company for about $1.1 million. The next year, the truck company writes Snyder a $13,000 check. The FBI and federal prosecutors say this payment was a gratuity for the city's trash truck services and brought charges against him.

Snyder argued that the payment was merely for consulting services as a contractor for the truck company, but nonetheless, a federal jury convicted him of accepting an illegal gratuity in violation of Section 666, and he was sentenced to one year and nine months in prison. Snyder appeals, and he argues that Section 666 only criminalizes bribes, not gratuities, and that they're two different things. And here we are. So the question for the court was whether Section 666 makes it a crime for state and local officials to accept gratuities under federal law? The answer, the court says, is no. Justice Kavanaugh, in writing for the majority, wrote, quote, Section 666 prescribes bribes to state and local officials but does not make it a crime for those

officials to accept gratuities for their past acts. Six reasons taken together lead the court to conclude that Section 666 is a bribery statute and not a gratuity statute. Text, statutory history, statutory structure, statutory punishments, federalism, and fair notice, end quote. In concluding, Kavanaugh writes, quote, the government asked this court to adopt an interpretation of 666 that would radically upend gratuities rules and turn 666 into a vague and unfair trap for 19 million state and local officials. We decline to do so. Section 666 is a vital statute, but its focus is targeted. 666 prescribes bribes to state and local officials

while allowing state and local governments to regulate gratuities to state and local officials. Within constitutional bounds, Congress can always change the law if it wishes to do so, but since 1986, it has not, presumably because Congress understands that state and local governments may and often do regulate gratuities to state and local officials. End quote. This was a 6-3 decision. Justices Jackson, Sotomayor, and Kagan dissented. Justice Jackson wrote the dissent and wrote, quote, Officials who use their public positions for private gain threaten the integrity of our most important institutions. Greed makes governments at every level less responsive, less efficient, and less trustworthy from the perspective of the communities they serve.

Today's case involves one such person. James Snyder, a former Indiana mayor, was convicted by a jury of violating 666 after he steered more than $1 million in city contracts to a local truck dealership, which turned around and cut him a $13,000 check. He asks us to decide whether the language of 666 criminalizes both bribes and gratuities or just bribes. And he says the answer matters because bribes require an upfront agreement to take official actions for payment, and he never agreed beforehand to be paid the $13,000 from the dealership. Snyder's absurd and atextual reading of the statute is one only today's court could love,

ignoring the plain text of 666, which again expressly targets officials who corruptly solicit, accept, or agree to accept payments intending to be influenced or rewarded, the court concludes that the statute does not criminalize gratuities at all. This court's reasoning elevates non-existent federalism concerns over the plain text of this statute and is a quintessential example of the tail wagging the dog, end quote. So that's Snyder. Gratuities are not criminalized under federal law like bribes are, and it's up to state and local governments to regulate gratuities to state and local officials, not Congress. Now for the bigger decision of the day,

Murthy versus Missouri. Murthy being the Surgeon General of the United States, and Missouri being one of the states that brought suit. We'll go through a little background first, and when I say little, I mean little. In 2021, Missouri and Louisiana, along with five private social media users, brought this case, alleging the government had unconstitutionally coerced social media platforms to restrict certain types of speech that the government didn't agree with, mainly speech dealing with the pandemic, vaccines, but also content about the election, the Biden family, Biden's political policies, things of that nature. As examples, in 2021,

the director of digital strategy for the White House, frustrated that Facebook had not removed a particular post after it was asked to do so, told Facebook, quote, last time we did this dance, it ended in an insurrection, end quote. Another example was President Biden saying that these social media platforms are essentially killing people for not monitoring the misinformation properly. The CDC and Surgeon General also communicated with the platforms and suggested altering the algorithms to suppress what they considered to be vaccine misinformation and posts about mask efficacy. The FBI communicated with platforms about election-related misinformation. So it's undisputed that the administration communicated with these platforms about their policies and procedures and asked them at various times to remove and suppress certain types of content. That is that is undisputed. So Missouri, Louisiana, three doctors, an owner of a news website and a health care activist sue.

And they claim that these platforms suppressed their speech in violation of the First Amendment. Now, this decision came down to standing, which we will talk about in great length in a second. It didn't even get to the merits of the case, but I do want to note something important. Social media platforms are not bound by the First Amendment. The First Amendment is in place to protect us from government suppression. Whether you like it or not, private entities can do whatever they want. They can remove us from their platforms. They can block our content. They can shadow ban us. They can say we can't post about X, Y, and Z. Private entities are not bound by the First Amendment. So essentially, what the plaintiffs were saying here is that the government coerced these platforms to restrict, suppress, etc. To the point that the platform's

conduct was no longer private. The platform's conduct became government action, and therefore, this was actionable under the First Amendment. But before the justices can even get to that question, whether the actions of the platforms became government action, they had to first determine whether the plaintiffs had a legal right to bring this lawsuit in the first place. This is what we call standing, and it's the most important aspect of any case. You cannot bring any lawsuit you want for any reason at all. You have to have the legal right to do so. If you don't, the court is not even going to answer the question that your case presents.

We saw this just a couple of weeks ago in the abortion medication case. Doctors had brought a lawsuit challenging the FDA's regulations surrounding an abortion medication, but the justices said, sorry, you have no right to be here. You don't even have the legal grounds to challenge the FDA regulations, and therefore the FDA regulations are upheld. Now, that doesn't mean that someone else who does have standing can't bring the same exact lawsuit in the future. It just means that those plaintiffs couldn't, and therefore their case was dismissed. To have standing, you have to prove three things. Number one, you either have suffered or will imminently suffer an injury that is concrete and particularized. Two, that injury is fairly

traceable to the challenged action. And three, your injury is redressable or fixable by a ruling in your favor. That second prong is what separates the majority from the dissent in this case. What is enough to determine that the platform's actions were traceable to the government and therefore helped to establish standing? The majority ruled that the plaintiffs could not establish standing in large part because the plaintiffs could not prove that the injury they suffered or were in imminent danger of suffering was traceable to the government. Justice Barrett, in writing for the majority, explained why. And she wrote, quote, the plaintiffs claim standing based on the direct censorship of their own speech,

as well as their right to listen to others who faced social media censorship. Notably, both theories depend on the platform's actions, yet the plaintiffs do not seek to enjoin the platforms from restricting any posts or accounts. They seek to enjoin government agencies and officials from pressuring or encouraging the platforms to suppress protected speech in the future. The one-step-removed, anticipatory nature of their alleged injuries presents the plaintiffs with two particular challenges. First, it is a bedrock principle that a federal court cannot redress injury that results from the independent action of some third party not before the court, that third party being social media platforms. In keeping with this principle, we have been reluctant to endorse standing theories that

require guesswork as to how independent decision makers will exercise their judgment. Rather than guesswork, the plaintiffs must show that the third party platforms will likely react in predictable ways to the defendant's conduct. Second, because the plaintiffs request forward-looking relief, they must face a real and immediate threat of repeated injury. Putting these requirements together, the plaintiffs must show a substantial risk that in the near future, at least one platform will restrict the speech of at least one plaintiff in response to the actions of at least one government defendant. On this record, that is a tall order, end quote.

So what the court is saying here is that for the plaintiffs to show standing, at least one of them has to show that they are at a substantial risk of being restricted by at least one platform in response to the actions of the government. It's not enough, though, that it's been done in the past. That's what the court said. One plaintiff has to show a substantial risk of it happening in the future. And the fact that played the biggest role in the court's analysis here is that the social media platforms had implemented COVID policies and content moderation policies before the Biden administration ever began communicating with the platforms in 2021. So Justice Barrett is explaining that it's hard for the court to find that the platform's actions were taken solely because of the government.

And for that reason, the plaintiffs were unable to prove all three elements required for standing, and the case was dismissed. The dissent, of course, disagrees. The dissent called this standard for traceability a, quote, new and heightened standard, and noted that only de facto causality is necessary for standing. Justices Alito, Gorsuch, and Thomas were the three dissenting justices. They agreed with the majority in that there was only one defendant who had the best chances at showing standing, a woman named Jill Hines, but they departed from the majority in saying this woman's standing was very clearly established, right? So the dissent says she very

clearly had standing, therefore the court should have gotten to the merits of the case, whereas the majority said she didn't have standing. Justice Alito wrote in part, quote, for months in 2021 and 2022, a coterie of officials at the highest level of the federal government continuously harried and implicitly threatened Facebook with potentially crippling consequences if it did not comply with her wishes about the suppression of certain COVID-19 related speech. Not surprisingly, Facebook repeatedly yielded. As a result, Hines was indisputably injured. She, by the way, had her content suppressed and her account shadow banned and things like that. The dissent continues, due to the official's continuing efforts, she was threatened with more of the same when she brought

suit. This evidence was more than sufficient to establish Hines' standing to sue, and consequently, we are obligated to tackle the free speech issue that this case presents. The court, however, shirks that duty and thus permits the successful campaign of coercion, in this case to stand as an attractive model for future officials who want to control what the people say, hear, and think. That is regrettable. End quote. Continuing and specifically discussing standing, Alito writes, quote, here it is reasonable to infer, indeed the inference leaps out from the record, that the efforts of the federal officials affected at least some of Facebook's decisions to censor Hines. All of Facebook's demotion,

content removal, and deplatforming decisions are governed by its policies. So when the White House pressured Facebook to amend some of the policies related to speech in which Hines engaged, those amendments necessarily impacted some of Facebook policies related to speech in which Hines engaged, those amendments necessarily impacted some of Facebook's censorship decisions. Nothing more is needed. What the court seems to want are a series of ironclad links from a particular coercive communication to a particular change in Facebook's rules or practice, and then to a particular adverse action against Heinz. No such chain should be demanded here. End quote. So again, this case came down to the legal right to sue and whether any of the five parties could satisfy the burden there. And the majority said

the plaintiff's censorship could not be adequately traced to a particular action of the government. Rather, it was traceable to the platforms, but they couldn't also tie it to a particular action of the government. The follow-up question from some of you, I'm sure, will be, well, if social media users don't have the ability to sue, who would have the ability? And the answer is probably social media platforms themselves. If a platform were to come in and say, hey, look what the government's doing to us. They've caused us some sort of particularized harm and we need you guys to issue a ruling in our favor to get them to stop with the threats and coercion, whatever. That would likely be sufficient for standing because they could identify an injury. It wouldn't be hard to prove the traceability directly to the entity coercing them. And then they would just have to show that a favorable ruling from the court would stop the challenged conduct.

But the reality is social media platforms won't do that because they don't want to face any adverse action like maybe the revocation or reform of Section 230, which is a whole other conversation for another day. But that would be my answer. If anyone has standing here to sue the government to get them to stop interfering with the conduct of platforms, based on the court's ruling today, it would seem as if the only answer is the platforms themselves. Now, I'm going to fit the rest of today's news into quick hitters. But note that today was, as I said before, the first of a three-day run for Supreme Court opinions. So I'll cover tomorrow's opinions in tomorrow's episode. And then if anything special comes out on Friday

and something is telling me that I will, then I may do a special episode or I may just post an explainer video to social media. We'll see. But stay tuned because the next week and a half or so, all eyes are on the Supreme Court. The first quick hitter, RFK Jr. will be partaking in his own presidential debate tomorrow. It's called The Real Debate. It'll take place tomorrow at 9 p.m. Eastern Time, which will air at the same time as the debate between Biden and Trump. RFK's debate will be streamed on X as well as therealdebate.com. So if this is something that interests you and you want to see what independent candidate RFK Jr. has to say,

tune into X or therealdebate.com tomorrow night at 9 p.m. Eastern time. An update to Julian Assange, who I reported on yesterday, the founder of WikiLeaks. He is officially back home with his family in Australia for the first time in more than 12 years after pleading guilty in a U.S. court to one count of conspiracy to obtain and disclose national defense information.

If you want more on the background of Assange, I did talk about it in yesterday's and the Espionage Act are in contradiction with each other, but I accept that it would be difficult to win such a case given all these circumstances. And quote, it is worth noting that now when you go to Wikileaks.org and you search for the quote important DNC emails that were released in November of 2016, you will receive an internal server error. You will not be able to see them. It's unclear at this time whether the error is the result of an overloaded server because so many people are searching for them, or if WikiLeaks had to delete them as part of the deal with Assange, we just don't know, but worth noting. Texas is set to execute death row inmate Romero Gonzalez via the lethal injection tonight, which would have also been the 41st birthday of his victim. Gonzalez was sentenced to death in 2006 for sexual assault and murder

of 18-year-old Bridget Townsend in 2001. Gonzalez's drug dealer was the boyfriend of Townsend, and when Gonzalez called his drug dealer's house, Townsend told him her boyfriend wasn't home. Gonzalez then showed up at the house, stole money, kidnapped Townsend, tied her up, and drove her to his family's ranch where he raped and then killed her. The case went unsolved for about a year and a half until Gonzalez confessed to her murder while he was sitting in jail for the rape of another woman. In some other oddly similar news out of Texas, a state district judge has set the bond for two Venezuelan men living in the U.S. illegally at $10 million each after they were arrested for the death of a 17-year-old girl whose partially naked and tied-up body was found in a Texas creek less than two weeks ago. Prosecutors say the two men entered the United States illegally in March and had evidence on their phones of trying to

leave the country when they became aware that prosecutors were looking for them. And finally, the trial of Evan Gershkowitz, an American journalist for the Wall Street Journal charged with espionage in Russia, began today. Gershkowitz was arrested in March 2023 while reporting in Russia for allegedly collecting secrets on production and repair of military equipment for the CIA. Officials from the U.S. Embassy in Moscow were given brief access to him before the trial started today and said that Russian authorities have failed to provide any evidence supporting the charges and that the case is not about the rule of law, but rather the Kremlin using American citizens to achieve its political objectives.

That is what I have for you today. Don't forget to go head over to unbiasedshop.com. Get yourself a hat. I'm telling you, they are great on the front, unbiased in big letters. On the side, it says just the facts. I put so much love and work into these to make them perfect. So check it out, unbiasedshop.com. I can't wait for you guys to get them have a great night and i will talk to you tomorrow