The Supreme Court's decision in Murthy v. Missouri is finally here! Evelyn sat down with Professor Genevieve Lakier, of the University of Chicago Law School, to discuss the good, bad and ugly of the opinions.
Genevieve Lakier:
... Alito does not acknowledge or seem to feel at all bad, regretful, about the fact that he wrote Clapper, wrote it in very strong and assertive language as if obviously that was the right result. And he writes this dissent again, arguing that the majority, which is really following Clapper, is obviously wrong. He seems to be completely insensible to the fact that there's deep inconsistency here.
Evelyn Douek:
Yeah, I mean, we don't know. He could have lost many, many nights sleep over this. So I mean-
Genevieve Lakier:
It doesn't seem like it.
Evelyn Douek:
... we're not trying to say that he's being inconsistent or hypocritical on the basis of the political valence of the particular case in front of him. He could have been up for weeks trying to reconcile this deep tension in these two cases.
Hello, and welcome to Moderated Content's stochastically released, slightly random and not at all comprehensive news update from the world of trust and safety with myself Evelyn Douek. And today we're doing a special breaking news SCOTUS edition of the podcast because the court has finally handed down its decision in Murthy v. Missouri, the social media jawboning case that we have been waiting for and that listeners to this podcast, long-time, loyal listeners to this podcast, will be well up to speed on.
Now, to help me break down and digest that opinion, I am joined by Genevieve Lakier, a professor of law at the University of Chicago Law School. And I think it's fair to say this podcast's official jawboning correspondent. So thank you very much for joining us, Genevieve. Big day.
Genevieve Lakier:
Pleasure to be here, finally. So glad that it has finally arrived.
Evelyn Douek:
Excellent.
Genevieve Lakier:
Or not so glad.
Evelyn Douek:
Not so glad as the case may be. We will see over the course of the next half an hour or so how glad we should be. Okay, so this case as our listeners would be well aware, concerns a sweeping claim brought by a number of plaintiffs against broad swaths of the Biden administration alleging that the government violated their First Amendment rights by improperly pressuring, or as the word is jawboning, social media platforms into censoring their content on their platforms and specifically related to the pandemic and the 2020 election.
So that's sort of the broad setup of the case. Now, before we jump into the details, let's give us the headline take. What's the bottom line of what the court said today?
Genevieve Lakier:
The bottom line is Biden administration wins. Fifth Circuit loses. The court in a 6-3 decision, said that the plaintiffs here have no standing. And so the takeaway for I think many of us is that it didn't and quite explicitly refused to reach the merits of the question. So it didn't go into the complicated First Amendment questions about what counts as jawboning or unconstitutional coercion. It just said the plaintiffs don't have a right to be in court.
Evelyn Douek:
Right. Okay, great. So this wasn't sort of the fine passing of this administration official said this and that forced the platforms to do this or anything along those lines. It's much more, well, it's about standing, so let's talk about standing and what that means in this case and how to read it.
And I think one of the big open questions coming out of this case is how broadly to read the decision around standing. But maybe just to kick us off, why did the majority, written by Justice Barrett in this case, say that the plaintiffs had no standing?
Genevieve Lakier:
I mean, because this was a ridiculous case in many respects. This is another case, one of many this term. Where the court takes a Fifth Circuit Court of Appeals opinion and essentially says "Fifth Circuit, what are you doing here?" That shows the sloppiness and I guess the broadness, the lack of care in the Fifth Circuit opinion.
So essentially the court says the plaintiffs have no standing because there is two groups of plaintiffs involved here. There's state plaintiffs, the government officials who are suing on their own behalf, and then there are individual private plaintiffs who use the platforms. Oh, I guess the government officials both use the platforms and had this theory that they had standing because they wanted to hear what their citizens had to say and that was effective when the government coerced other platforms into taking down speech. And the court says essentially, first the state officials have no standing because they haven't been able to show that they are affected at all by what they claim to be the unconstitutional government coercion.
And it is, I mean, truly remarkable. In some of these cases, the government officials didn't even bother to show that any speech of theirs happened to be taken down for any reason from the platforms that they're saying were implicated in this broad censorship scheme. The kind of lack of detail involved in these allegations is remarkable. And the fact that the Fifth Circuit didn't care about it is also, I have to say really remarkable.
There were more detailed allegations with respect to the individual plaintiffs, but here too, the court in an opinion by Barrett says, you haven't shown enough to show the basics of standing, which is that you were actually harmed by something that the government did, and that that harm because this is about getting injunctive relief, that is to say it's about the court ordering the government to stop doing something in the future, requires the plaintiffs to show not only that they have been harmed, but really that they are likely to be harmed again in the future and that the harm is going to be what's called redressable by a court order, that if the court orders the government to stop doing something that's going to prevent the harm from recurring. And they just didn't show any of this to the court's satisfaction.
Evelyn Douek:
Right. So I guess the question then is what does need to be shown? Because as you say, the facts in this case we somewhat ridiculous as Barrett's opinion makes clear, and we can go into that in some more detail, but they were very, very broad. And this is how the lower courts had dealt with it too, was just sort of describing this very amorphous set of facts about a series of ongoing conversations between the government and platforms and then this evolution of the platform's policies in response to those conversations, and then these plaintiffs being moderated as a result of those policies.
And what she seems to be suggesting is not only, hey, these facts are really, really bad. She talks about how, for example, the platform started moderating before they even talked to the government and how at one point the plaintiffs are complaining because they had restrictions based on LinkedIn and Barrett notes, that there's nothing in the record to show that the government ever spoke to LinkedIn, which just as an aside is a little bit of a sick burn to LinkedIn. So poor left-out little LinkedIn there.
The question is it just that these facts were so ridiculous, or is it that the court is saying you need to be able to show that as a result of this specific communication between the government and a platform, this specific post was taken down in order to get into court and in order to have standing. And I'm curious for your thoughts on how broadly or narrowly we should read this case.
Genevieve Lakier:
Yeah, I'm not sure. I mean, I guess I'll tell you that reading the opinion was a bit of an emotional rollercoaster for me, because I would go from thinking, "Oh yeah, you're completely right. That is just totally ridiculous." And there is something very satisfying about the Supreme Court and Barrett's opinion in particular. She's a very clear writer. She was quite careful showing all of the crazy illusions and broad claims and failures that the lower courts had just completely failed to grapple with. I think for those of us who read opinions a lot, what the district court and the Fifth Circuit did in these cases was kind of maddening because there was this, we talked about this when we talked about jawboning this case before, this was this huge record and quite hard to make sense of.
And what the district court, and I think the Fifth Circuit did was take advantage of that by sort of mixing and matching and speaking in these broad generalities in ways that produced a satisfying story but wasn't very responsible. And Barrett's opinion in many of these cases, just very dryly, but I think very damningly, shows all of the problems with the lower court opinion. So in one case, for example, one of the plaintiffs is bringing a censorship claim and it turns out that the speech that was being suppressed was his brother's. And she points this out. I mean ridiculous things. And as you said earlier, some of the speech that gets taken down gets taken down before the plaintiffs allege the coercion occurred.
So on the one hand, this is all very satisfying and very good. We want courts to be careful with the facts. That is their primary job, to be careful and thoughtful about facts and not to reach over-broad conclusions. But then the opinion would then take from that, or invoke principles to explain what it was doing, that I worry could be used to prevent plaintiffs from getting into court in other cases where these factual problems are not evident.
Now, I don't know, I don't know how to read this opinion. Because the facts are so bad, it would be extremely easy for subsequent courts to distinguish to say, "Okay, okay, so the court said this, but come on, it was in the Murthy case and we all know the case was a ridiculous crazy case." But on the other hand, some of the things that Barrett says in the majority opinion are worrying for those of us who think that jawboning actually is a very significant First Amendment problem and that it is often going to be difficult for plaintiffs to be able to show with great specificity all of the facts, from the get-go to be able to show that all the things that the court here seems to require in order to get into court. So for example, the court lays out a test of standing that is phrased generally, it's not really about jawboning specifically, but I think it's going to make it particularly difficult for plaintiffs in jawboning cases to satisfy.
So there is the suggestion that in cases where platforms have independent reasons to have moderated the speech, the first element of standing, which is to show causation, will not be satisfied. Now the majority opinion doesn't say it, but it emphasizes again and again and again that the platforms moderated speech in all kinds of ways, that they had created policies to deal with misinformation before all of the alleged government actions in the complaint occurred, that they had independent incentives to moderate content. It just goes on and on and on. All of which suggest that this is a real problem on the majority's view with the plaintiff's standing claim.
But of course speech intermediaries like platforms are always going to have lots of good reason to moderate speech. And if the fact that there are some plausible independent reasons for platforms to take down speech is enough to defeat standing in jawboning claims, it's going to be very difficult for other plaintiffs in other cases to ever get into court.
Evelyn Douek:
Yeah, I think that's exactly right and I just want to underline that as well. Where Barrett says, "Facebook had independent incentives to restrict one of the plaintiff's content, it's therefore difficult to say that the White House was responsible even in part for all of the later restrictions, especially absent clear links between the White House content moderation requests to Facebook and Facebook's actions towards this particular plaintiff," which seems like a very low bar to say that there's always going to be independent reasons. I mean, we know most content moderation is done a purely for business, commercial, reputational reasons and wouldn't be done if those independent incentives didn't apply. So that's a worrying statement.
Genevieve Lakier:
Yeah.
Evelyn Douek:
Sorry, go ahead.
Genevieve Lakier:
Well, and it was particularly worrying because what we're talking about is standing.
Evelyn Douek:
Right.
Genevieve Lakier:
We're talking about what is not supposed to be an analysis of the merits of the case, but just what's good enough to get you into court. So it might be the case that plaintiffs can allege this is because of the government and it turns out that after you've made all your arguments and there's the counter arguments, the jury just doesn't buy it. They don't think it was ultimately because of the government. They think it was because the platform had independent reasons.
There is this interesting doctrinal question about does the government coercion have to be the primary motivation? Does it just have to be one of the motivations? What do you do in mixed motive cases? We don't get anywhere close to that here. But just leaving that aside, let's assume whatever the rule is, after you've cleared all your facts and you've had all of your closing arguments and your opening arguments and your cross-examination, the jury doesn't buy it. That's one thing.
But we are talking about standing, which is about whether or not you even get the opportunity to present those arguments. And the suggestion here, that in order to even get the opportunity to present your arguments, you have to make a fail safe argument for why it has to have been because of the government coercion, that's very troubling. That's a very, I think, anti-free speech rule because we know in jawboning cases, it's often going to be very hard for plaintiffs to have access to all the information at the get-go. And if they don't have standing then they don't get the opportunity to go any further.
Evelyn Douek:
And I just want to underline that last point because I think it's really, really important. One of the difficulties in jawboning cases is that by their very nature, they happen behind closed doors, that when the government is threatening a private entity to take down speech or to change its behavior, in part it will use the bully pulpit and do it in public. But often obviously it will do it behind closed doors through specific threats.
And if the private entity is capitulating to those threats, they're also not likely to be coming out and making big hay out of it and saying, "Look, here's the proof that we censored you as a result of government pressure." And so the plaintiffs need the legal process, need discovery in order to get that evidence and to bring their case. And so if there's a high bar at the standing hurdle that's going to preclude a lot of the claims.
We've talked about that procedural hurdle in the context of jawboning and why often you have a broader conception of standing in First Amendment cases for exactly this reason. You're concerned about chilling effects and not having plaintiffs be able to raise their claims.
Genevieve Lakier:
Yeah, I mean what was remarkable about Barrett's opinion is that there's just no acknowledgement or engagement with the fact that this is a First Amendment case, or all the things you just laid out. The court, the majority just does not seem to be worried about the chilling effect, or the proof problems for plaintiffs, or any of those concerns. It's applying generalizable standing, a doctrine in this particular case with it seems like no anxiety, no concern about what the actual implications for being able to identify government bad behavior is going to be.
And that's disappointing because traditionally courts have treated the First Amendment as exceptional. They've recognized that speech can easily be chilled, and so they have worked hard to make it easier for plaintiffs to get into court, at least to make their allegations. Whether or not they always win is one thing. But you want to make sure that courts get the opportunity to figure out what's going on behind closed doors when it comes to speech. And the majority opinion seems completely insensitive to those concerns.
So a second worry is that because what the plaintiffs were asking was injunctive relief, forward-looking relief, they wanted the government to stop talking to the platforms going forward. They weren't asking for damages for past behavior. The court, the majority is very clear that they have to show not only that there was some evidence of bad behavior in the past, but that bad behavior, I guess I should say unconstitutional behavior is likely to continue in the future. And also that if the court orders the government to stop engaging in that kind of bad behavior, that jawboning, it's going to change the platform's decision making.
And that's worrying because just thinking realistically about how businesses operate, imagine you have a government official who has threatened the business and told it what to do, and then the business orients its behavior in a particular way to avoid all these bad consequences. And then the government official stops talking. Do we assume that the incentives that have been created to chill speech or to do whatever the government official wanted have disappeared? Or is it instead just that they've been effective, that the government official got what he or she needed and this is now structuring how the private business is going about its operations?
I think the latter. I think that there is no reason to think necessarily that when the government coerces or puts pressure on platforms to suppress speech, they have to keep coercing, they have to keep actively working to suppress the speech in order for their actions to be effective. But the majority opinion seems to assume as much. That even if we could show, even if the allegations in this case were better, and the plaintiffs could show that actually in the past they had been harmed, that wouldn't be enough either. They would have to show that there's really likely, it's substantially likely I think it's the standard, that government officials are going to continue to be making similar kinds of threats, saying similar kinds of things into the future. And I think that's going to be a big hurdle.
And of course you could say, well then the plaintiffs should have pleaded for damages. They should have asked for damages, not just for injunctive relief. But the court in other cases has made it very hard for plaintiffs to get damages in First Amendment cases. They have rejected the idea that the Constitution just gives you a right to damages because you have First Amendment free speech rights. And so absent Congress doing something to say. Yes, plaintiffs in these kinds of cases, they can be awarded damages, injunctive relief is really the only realistic relief you can ask for in these kinds of cases. And so the standard here just seems like it's very high.
Evelyn Douek:
Right. Yeah, absolutely. So I think on the one hand sort of summing up a little bit how to think about the majority decision. On the one hand I think we have this really welcome attention to the actual facts in the case, which for those of us that have watched this proceeding for months and years now has been extremely frustrating that this hasn't been the case until now, where we've had these lower courts just making up or aligning facts in order to fit a certain narrative. And Justice Barrett, as you said, pretty much smacks down the lower courts with remarkable clarity in a way that you'd rarely see from a Supreme Court opinion. But there's this lovely little footnote where Justice Barrett says, "The Fifth Circuit relied on the district court's factual findings, many of which unfortunately appear to be clearly erroneous." Like unfortunately, what an unfortunate happenstance that we find ourselves in this situation where whoopsie-daisy. And then the footnote goes on to give a whole list of specific examples where the court has somehow unfortunately given mistaken facts.
And so that's really welcome from this contrast with these lower courts that were kicking up dust to try and sort of make this large conspiracy appear to be bigger than it was. On the other hand, it is also an opinion, in being so specific, in looking for these specific claims or these specific links, that ends up being remarkably sanguine about government-platform communications. That doesn't seem to be at all attentive to the broader dynamics that are going on here about the ways in which government exercises power. If you are looking for a specific threat and a specific ongoing threat that ends up in a specific piece of content being taken down, you're often going to come up empty. But of course that's not how these things work.
And I'll come back to Justice Alito's dissent in a second, but he has this line where he says, "Officials who read today's decision together with Vullo will get the message if a coercive campaign is carried out with enough sophistication, it may get by. That is not a message that this court should send." And I think there's some truth to that. But before we get to that criticism, I think we should talk about Vullo, which Alito is referring to there, just so that we sort of unpack what the court is saying.
So there is some frustration, I think, that in this case the majority said nothing about the substantive constitutional lines for government actors when they engage with social media platforms because it is so focused on standing. We are now heading into an election where some sort of that guidance might've been helpful, where there might be all sorts of reasons why government actors and platforms might want to be having communication. And so more guidance from the court for those legitimate communications and how to stay on the right side of the line could have been useful. And Murthy explicitly went out of its way to say, we are not saying anything about the merits here. We expressed no view as to whether the Fifth Circuit correctly articulated the standard for when the government transforms private conduct into state action.
But fortunately, Murthy wasn't the only jawboning case that the court decided this term. And a few weeks ago the court handed down its decision in NRA v. Vullo, which is not a social media case, but is about this key question of government pressure on private entities. And so can you give us a little bit of an overview of that case and what guidance it gives to platform-government communications and how we should think about this problem of jawboning more broadly?
Genevieve Lakier:
Yeah, great. I mean it is I think important and useful to think about Murthy in contrast to and in connection to NRA v. Vullo, not only because the two were argued together, but also because there's interesting contrast and tension I think between the two.
So NRA v. Vullo is this case involving a claim of jawboning not against a government official who's putting pressure on social media company, but a government official, in this case in New York state, who was putting pressure on insurers to stop providing NRA-supporters insurance, some of which broke New York law because incredibly enough, horribly enough, it provided insurance against intentional criminal behavior, people intentionally shooting their guns and harming or killing other people, which understandably enough, New York State prohibits.
But the claim in the case was that the New York State official went to these insurance companies and said, "Look, we're really worried about gun violence. We don't like the NRA's advocacy around these issues. And so if you stop providing insurance for NRA and other gun advocacy organizations, we're going to not pursue your violations of New York law when it comes to other kinds of what's called affinity insurance or other insurance programs that are not related to gun manufacturers." And so that was understood to be a kind of threat and a promise. If you do what we want, if you sever ties with this organization that whose speech we really don't like, we'll go easy with you when it comes to other things that you're doing in violation of our law. We are not going to investigate them. We're not going to prosecute them. So it's a case of kind of a threat but also an inducement. We're going to give you a carrot if you do this or we're going to threaten you if you don't do this.
So it's a classic jawboning case but not a social media case. And what's so interesting about the Vullo opinion, well, two things I suppose. So in Murthy, the court today reversed the Fifth Circuit because I thought the Fifth Circuit was too expansive in how it read the First Amendment jawboning rules. And in Vullo, the court reversed the Second Circuit because it thought the Second Circuit was too narrow, was too ungenerous in what it viewed as a potential constitutional violation. So we've got a little bit of a Goldilocks situation here where the court thinks, some courts the porridge is too hot, and some courts the porridge is too cold. We're doing some kind of intermediate approach, which might make sense except that there is quite a lot of tension I think between the analysis in Vullo, which was written by Justice Sotomayor and the analysis in Murthy.
And actually I was going to bring up Vullo just a second ago when we were talking about Barrett, her careful attention to detail, but also this kind of formalistic decontextualized way, very demanding way that she looks at all of the interactions. She just looks at them one-by-one and demands that in every single case the plaintiffs are able to show that this was indeed coercive and there was some kind of explicit or implicit threat.
What's interesting is that in Vullo, this was exactly what the Second Circuit had done to conclude that the plaintiffs had not proven their claim because they couldn't prove that any specific particular individual thing that the government official had done violated the First amendment. And Sotomayor's opinion says, "Look, the core question in First Amendment jawboning claims is it persuasion or is it coercion? And to figure out coercion, you shouldn't engage in a wooden analysis, you shouldn't decontextualize what is occurring. You have to think, you have to look at the totality of the circumstances and put it all together."
And so that's a very different approach than we see in the Murthy opinion. And if that is the approach that is guiding this kind of substantive constitutional analysis, I feel much better about it. It's very in keeping with the original jawboning case that the Supreme Court decided in 1963 all those years ago, which was also really not formalist and thinking about the totality of the circumstances and trying to approach these questions of government-private communication and coercion from a very realistic perspective. What's it likely that a private person is going to take away from this government interaction? The government actor doesn't have to say, "If you don't do X, I will do Y," because that's not actually how government officials put pressure on private entities. Courts are not going to be blind to social reality. They're going to be sophisticated in trying to figure out when something moves beyond just persuasion or request to something like coercion or demand.
And the Murphy opinion seems very different in that respect. It seems much more of a reversion to a much more formalist, much more skeptical approach to the jawboning analysis. Now it might be, and this again is why I am not sure how to read it going forward, it might be that the court was just very skeptical about these claims and these plaintiffs because they had done such a horrible job, such a loose and sloppy job of making their allegations below, and so was none of it. Murphy might reflect a kind of case-specific skepticism and an unwillingness to bend it all because the Fifth Circuit good had clearly pushed everything together way too much, as you said, kicked up too much dust. So the court is trying very hard to bring out the broom and sweep away all the dust. And we might not see that in other cases.
But I did find it kind of remarkable whiplash having just read Vullo, which is very explicit about the need to be context-sensitive, to take different government statements and actions in relation to one another, to not overly decontextualize. All of those things are very explicit in Sotomayor's opinion. And then you go to Murphy where the court seems to be doing all the things that in Vullo the court said the second Circuit had gotten wrong. So there is I think quite a lot of tension between these two cases. And I worry that the message to take away from Murphy and Vullo is not just the one Justice Alito took, which is sophisticated verse blunt, but social media versus others. That the Vullo case I think was easier for the court to deal with because the facts weren't as complicated.
It was a government official talking to two or three, three or four insurance companies about a very small range of actors, the NRA and other gun companies. It wasn't on the scale that is going to be the scale when we're talking about social media decisions, where you have government officials talking to platforms about potentially thousands and thousands of users who are spreading what it considers to be vaccine misinformation or engaging in other bad behavior. And in those cases, it is going to be much harder to establish the kind of clear causal links that the Murthy opinion, Barrett seems to be demanding.
So NRA v. Vullo, it's just an easier case to get your head around because it's just smaller. There's fewer people involved. It's not in this Wild West, which is social media, but I would hate for the takeaway to be okay, it's fine to jawbone social media platforms, just don't job on insurance companies. That's not a good conclusion.
Evelyn Douek:
Certainly not. I think that's such a nice point. You're so right about the contrast reading Vullo where Sotomayor says, "The Second Circuit could only reach its conclusion that there wasn't coercion here by taking the allegations in isolation and failing to draw reasonable inferences," and then saying that you need to take these specific interactions against the backdrop of other allegations. And that's exactly what Barrett was somewhat at pains not to do, or admonishing the Fifth Circuit for doing too much of in its opinions. And so there is a little bit of, I think, Goldilocks. Like, good luck lower courts. Just get it just right.
Genevieve Lakier:
And not to focus too much on the personalities of the individual justices, but it is interesting. Justice Gorsuch wrote a concurrence in Vullo, which I think is a kind of funny concurrence because I don't know exactly what it's doing. It's very, very short. But he writes a concurrence just to say basically, it's so good what the court's doing here, don't be too formalist and don't be too reductionist, and don't rely on wooden rules too much. It's great what the majority is doing here. Go, go, go majority. And he dissents in Murphy. So clearly he was really happy with what Sotomayor was doing and not so happy here.
Evelyn Douek:
Okay, so let's turn to the dissent written by Justice Alito with Gorsuch and Thomas joining, which is out of a completely different universe. So it starts out strong with the statement that, "If the lower court's assessment of the voluminous record is correct, this is one of the most important free speech cases to reach this court in years." So starting out bold there and Alito sidesteps a lot of the factual issues that Barrett had identified about the record in this case, essentially by focusing on one particular plaintiff and one particular platform and saying, "If you can establish standing for this plaintiff, Joe Hines, with respect to this platform, Facebook, then for any plaintiff, then you can need to get to the merits and we need to do the analysis." Now, Barrett in response essentially accused Alito of skewing the facts by saying in a footnote that judges should not be like pigs going out hunting for truffles buried in the record.
But that is somewhat what Alito is doing. The picture that Alito paints of the platforms is not a flattering one. He has lots of withering remarks and slants on the platforms. He says, "Facebook's responses to government pressure resembled that of a subservient entity determined to stay in the good graces of a powerful task master." And at various points says that Facebook was whimpering in response and gave quavering answers to officials queries, which is a colorful way of describing what's going on here. But again, there is a little bit of the worst guy that you know makes a good point meme going on here, given the sanguineness that we talked about with respect to Barrett and Barrett's sanguineness about jawboning claims. What did you make of Alito's dissent and how do you think about it?
Genevieve Lakier:
Well, yeah, I really did think the majority in the dissent live in different universes, which is interesting because we would think Barrett and Alito, they're both on the court's conservative wing, they have both been championed by similar kinds of groups and yet their view of what is going on here is so different. Again, another reason why First Amendment cases are interesting because you get intra-party, intra-wing dissents and disagreements that can be extremely heated as I think there is a lot of withering language in both the majority and the dissent. And while Barrett, I think I agree, seems overly sanguine, Alito is so alarmed, seems completely persuaded that this was this vast censorship campaign like we've never seen before in American history. And I just think there's no evidence to support that either. Again, just to go back to the Goldilocks metaphor, I mean if the majority seems way too calm, the dissent seems way, way too alarmed by the facts.
And as a result, yeah, it's just not engaging with the very, very poor pleading that is at stake here. And it doesn't really help his case by not responding to any of the majority's very careful critiques of the standing issues in the individual cases. At the same time, the dissenting opinion is the only opinion that talks at all about the incentives, the problematic incentives that are likely to be true of speech intermediaries. Well, this is something we've talked about before, but it is a huge issue when we talk about jawboning, the fact that platforms like Facebook or YouTube or even LinkedIn are likely not to have very strong economic incentives to be zealous guardians of their users' speech. And therefore we should be worried when we see government efforts to coerce or threaten even when they're soft, because we might worry that they're going to be all too willing to go along with those demands.
Barrett again, seems completely insensitive to that concern. Alito seems incredibly worried about that concern and as a result seems to just not pay a lot of attention to these doctrinal questions about individual party standing. He wants to get to the merits, he wants to talk about what is deeply problematic in this case. And you know what? I'm really sympathetic with that. I standing arguments often really frustrating in cases where you have what looks like a significant evidence of constitutional violations and you just cannot get there if you don't have standing. So I'm sympathetic on the one hand, but on the other hand, this is the old problem with standing. We have standing rules because the courts think that it's important to have only directly affected plaintiffs bring these claims, and Alito is just not really engaging with that problem at all.
Evelyn Douek:
Right. And it's all the more galling because I myself think we should have a broad conception of standing in First Amendment cases for all of the reasons that we've been talking about, for the incentive problems, the chilling effects, the fact that we might not have the evidence at such an early stage. And yet the court's doctrine has not been particularly sympathetic to that point of view for a while. And in particular there's this key decision that the majority cites a lot in its opinion as establishing why we need these narrow standing rules and how the doctrine has always said, we have narrow standing rules. It's called Clapper.
And now Alito mentions this very little in dissent, which is curious because Genevieve, I'm wondering as the First Amendment expert here, who wrote Clapper and what exactly did it say?
Genevieve Lakier:
Well, a justice called Justice Alito wrote Clapper and it said that plaintiffs in a case and that case was involving government surveillance didn't have standing because they couldn't prove when they were seeking injunctive relief with absolute certainty or very substantial likelihood that they would be directly affected by the government action in the future. And the majority written by one good old Sam Alito said that that's not enough to establish standing. And so there is a deep irony in that in many ways this case is very similar to the case in Clapper. And I think Clapper was wrong and it was a crazily narrow view of standing given the First Amendment equities. And I also think this is an overly narrow view of standing given the First Amendment equities.
And yet Alito does not acknowledge or seem to feel at all bad, regretful about the fact that he wrote Clapper, wrote it in very strong and assertive language as if obviously that was the right result. And he writes his dissent again arguing that the majority which is really following Clapper is obviously wrong. He seems to be completely insensible to the fact that there's deep inconsistency here.
Evelyn Douek:
Yeah, I mean we don't know. He could have lost many, many nights' sleep over this. So I mean we are not trying to say that he's being inconsistent or hypocritical on the basis of the political valence of the particular case in front of him. He could have been up for weeks trying to reconcile this deep tension in these two cases. We'll just never know. Yes, so particularly galling given that.
Okay, so looking forward a little bit more about what this might mean for other cases as we wrap up. For obvious reasons, I don't want to go into this too much, but this case is only one plank of a broader conservative attack on content moderation. And another front of that attack has been on independent researchers who work with platforms who research online narratives and talk to platforms about it. And in particular, as Platformer reported in a story last week that got quite a bit of attention, that was titled The Stanford Internet Observatory is Being Dismantled, that we have seen the SIO rolling back a bunch of its work as Platformer showed, as reported out as a result of some of this external pressure and political pressure.
So we've seen someone named Alex Stamos, who listeners may or may not have heard of, who was SIO's founding director, and friend of the pod Renee DiResta, SIO's research director who have both left their roles, and Platformer reported that SIO won't be conducting research into the 2024 election. I don't want to go into that whole narrative too much given the time, but there is a comment in Justice Barrett's majority opinion that I think is worth highlighting and pulling out that pretty clearly articulates that the problems with claims against these independent researchers. So talking about one particular plaintiff, Hoft, Barrett says "Hoft claims that his content appears in a CISA document tracking posts at various entities had flagged for platforms as misinformation. The spreadsheet shows that a private entity, the Election Integrity Partnership, not CISA alerted Twitter to an unidentified article from the Gateway Pundit. This evidence does not support the conclusion that Hoft's past injuries are likely traceable to the FBI or CISA."
So just again as the First Amendment expert, Genevieve, the private entity. Is that significant for First Amendment purposes, the fact that the Election Integrity Partnership is a private entity? Does that change the First Amendment analysis here?
Genevieve Lakier:
Well, as Justice Alito himself said in dissent, the fact that it's a private actor operating in a particular way means that the First Amendment does not apply to them in the same way. Private actors are protected by the First Amendment, they're not constrained by the First Amendment. So yes, it does matter. And I guess I would say that this example is a good example of the win-some lose-some character of the majority opinion. On the one hand, it's so much more careful than the district court and the Fifth Circuit about who all the different people are and is able to distinguish between private actors and state actors for purposes of the First Amendment analysis, which is a really good thing. It doesn't always just smush them together in a big conspiracy bucket.
But on the other hand, it might make it harder, for example, if a private entity like SIO wanted to bring a jawboning claim against someone like I don't know Jim Jordan. The kinds of standing rules that are articulated here might make it harder to do so.
Evelyn Douek:
Yes. And just picking up on that last comment that you made as well, I mean this is a very foolish thing to do given that the court could prove me wrong by the time you are listening to this, listeners, if as expected the NetChoice decisions come out this week as well, which is likely. But that comment that you pulled out in Alito's dissent where Alito said, "Of course, purely private entities like newspapers are not subject to the First Amendment, and as a result, they may publish or decline to publish whatever they wish."
I mean, it's interesting to note that both the majority opinion and the dissent find it completely unremarkable that platforms are doing a whole lot of content moderation and that it is their right to do so, and it can be quite extensive and it can go well beyond the limits of the First Amendment. And of course, that is one of the key questions teed up in NetChoice. And so I think suggests pretty positive things for the platforms in the NetChoice cases, defending their First Amendment right to do content moderation. But of course now I'll be proved wrong by the time you listen to this. So let's see.
Genevieve Lakier:
Well, actually, I think one of the interesting things, again dangerous because we might all be wrong within 24 hours, but one of the interesting questions that I think has been triggered by all of these cases is whether the court is going to develop a special First Amendment law for the platforms, whether it's going to apply new First Amendment principles to these different kinds of speakers. And in Lindke, the earlier case about state action and government officials, pages, and in this case too, it seems to be applying standard trans-substantive principles. It's pushing against any effort to craft special platform-specific standards. And if that holds for NetChoice, then I agree it's going to be good news for the platforms and bad news for Florida and Texas.
Evelyn Douek:
All right, well, we'll have to wait and see. We may be back in your earbuds soon about that. But for now, this has been your second Moderated Content episode for the week, you lucky ducks. This show is available in all the usual places and show notes and transcripts are available at law.stanford.edu/moderatedcontent. This episode is produced by the wonderful Brian Pelletier. Thank you, Brian, for doing this on a quick turnaround and we will be back in your ear holes again soon.