Evelyn sat down with Professor Genevieve Lakier, of the University of Chicago Law School, to discuss the Supreme Court's decision regarding the Texas and Florida social media laws. Not the worst opinion the Supreme Court issued on July 1, but predictably there's a lot to complain about anyway.
Evelyn Douek: My casual perusing of social media of various types this morning has suggested that there's been a lot of relief and praise for this decision. So I think a lot of sighs of relief that the Supreme Court didn't break the internet, and that one of the good things that it did was reject the most extreme versions of the arguments offered by either the platforms or the states.
Hello and welcome to Moderated Content, stochastically released, slightly random and not at all comprehensive news update from the world of trust and safety with myself, Evelyn Douek. And today for the second time in a week, we're doing a special breaking news SCOTUS edition of the podcast to discuss the hands down, most important and anticipated opinion that the court issued today, this day, July 1st, 2024. The decision that absolutely everyone is talking about clearly the most consequential for American democracy.
There's just no competition in this bracket today. What decision could I be talking about, except of course, da, da, da, the NetChoice opinion concerning the Florida and Texas laws that purport to prevent social media platforms from engaging in certain kinds of content moderation. The nation has been on the edge of its seat about these decisions all day, and thank goodness we are here to break down and digest that opinion for you loyal listeners. And to do so, I am once again joined by Genevieve Lakier, professor at University of Chicago Law School and First Amendment expert. So thank you again for doing this second time in a week, Genevieve. It's great to have you on,
Genevieve Lakie...: Happy to be here. But what other opinions were there today? Was there another opinion?
Evelyn Douek: No, clearly that was the whole point of my intro, was that no other opinion could possibly be preoccupying anyone today, July 1st, 2024. This day in history will go down as the NetChoice day for sure. Okay, so let's start with the bottom line. This was a "unanimous" ruling that purported to not really decide anything, and remand the cases to lower courts for further fact finding and analysis. But as we'll talk about that accurate summary of the decision, I think obscures a lot more complexity. There's a lot more going on in this 96 pages of judicial writing that we both digested today. And there is in fact quite a large amount of disagreement between various justices. But also I think the majority opinion does heavily load the dice for what the lower courts have to find at least in certain respects, once they get the cases back about these two laws. So we're going to talk about all of that complexity, but let's set the conversation up. What were the laws in question? What did the majority decide, and what happens next?
Genevieve Lakie...: Okay, so the case involves two different laws. One, a Florida law that applies to social media platforms, which it defines pretty broadly and prevents them from censoring, discriminating against what are called journalistic enterprises based on the content of their publication or broadcast. So basically, you cannot demote or take newspapers off the platform. And then I think more importantly, it also prevented censoring, deprioritizing, discriminating against posts by or about political candidates such as one Donald Trump.
Evelyn Douek: Oh, is that who they were talking about in that provision? I hadn't realized.
Genevieve Lakie...: I think so. Obviously, always engaged in purely lawful behavior and on the platforms he under the Florida law has to be allowed to access all the viewers. And then there's a Texas law that prevents viewpoint discrimination online, all platforms that operate in Texas. And also like the Florida law imposes a variety of disclosure obligations, and rights of appeal for users when it removes or alters their posts, stuff like that. And the trade group NetChoice, which represents all the major platforms challenged both laws and got a mixed result. It got the Eleventh Circuit to enjoin almost all parts of the Florida law on First Amendment grounds, but it lasted in the Fifth Circuit, which upheld the law against the First Amendment challenge. The law was stayed on appeal, but the Fifth Circuit found that basically everything that Texas had done when it prohibited viewpoint discrimination online was constitutional.
So this goes up to the court and in a unanimous decision, the court said both lower courts got it wrong, although the Fifth Circuit got it much, much more wrong than the Eleventh Circuit by enjoining the laws, by stopping them from going into effect without figuring out how they applied. And then it provides some guidance. The majority provides some guidance about what they should do below, that gives very strong indications that below both courts should find that these laws are unconstitutional, as applied to the Facebook feed or YouTube, the major platforms.
Evelyn Douek: Okay, great. So we're going to come back to this question of overbreadth and facial challenges and what that means, it's a technical thing that we'll dig into. But let's start with some of the good things about this opinion before we hit our usual critical and disappointed tone that is characteristic and on brand here. I think that my casual perusing of social media of various types this morning has suggested that there's been a lot of relief and praise for this decision. So I think a lot of sighs of relief that the Supreme Court didn't break the internet, and that one of the good things that it did was reject the most extreme versions of the arguments offered by either the platforms or the states. So what's the basis for that relief, that opinion, that reading of what the Supreme Court said?
Genevieve Lakie...: There's truth to it because the views on both sides were pretty extreme, and so the court doesn't go there. So on the one hand it says some of what the platforms do when they moderate content online is entitled to First Amendment protection. And I think to listeners to this podcast that would not seem like a thing that you really have to say in the year of our law 2024. But the Fifth Circuit had asserted below that when platforms engage in content moderation that takes down user speech because it violates their community standards, they're engaged in censorship, which is completely different from editorial discretion and not protected by the First Amendment and the court. And I think every single member of the court to varying degrees says, "That's crazy Fifth Circuit, no way." And so content moderation under certain circumstances is protected by the First Amendment.
So it rejects the crazily pro-regulatory, anti-First Amendment approach taken by the Fifth Circuit. On the other hand, Kagan goes out of her way to say that some kinds of government regulation of social media platforms and online actors is and will be permissible under the First Amendment. And ultimately, I think this is why the court refuses to just say these laws are unconstitutional, even though gives strong hints that as applied to all of the platform services that NetChoice was arguing about, it's very, very likely that they're going to be unconstitutional.
It says that there's this other range of activities and platforms and platform services to which they might be constitutional, and so that's why it sends it back for fact-finding below. And so there is a way in which the opinion is trying to carve out a space of government regulation of social media that doesn't also at the same time give the government carte blanche to decide what platforms can and cannot do, when it comes to content on their platform. So read in that way, I can understand why people are happy. The court, it's trying to walk this tight rope, it's trying to go between these two extremes.
Evelyn Douek: Okay, great. So as you said, the lower courts, there'd been this Eleventh Circuit opinion that it had broadly struck down Florida's law, and then this Fifth Circuit opinion that had essentially held up in every respect that Texas law. And one big theme of the court's opinion today as you said, and this is very much of a piece with the conversation we had last week about Murthy, and indeed actually the Supreme Court's term more broadly is the Fifth Circuit got it wrong. The Fifth Circuit got it very wrong, and there's a lot of SmackDowns at the Fifth Circuit in this opinion. So the majority explicitly said the Fifth Circuit is wrong in concluding that Texas's restrictions on platforms selection, ordering and labeling of third-party posts do not interfere with the platform's expression, and that it needed to say a number of things in order to prevent the Fifth Circuit from repeating its errors once it got the case back.
And then both Barrett and Jackson in their concurrences go out of their way to again say the "Fifth Circuit got it wrong, the Eleventh Circuit got it right. We like the Eleventh Circuit in most respects. The Fifth Circuit got it wrong." And so this is why I think a fair reading of these decisions is that even though technically what the court did was remand the cases to lower courts for further fact-finding, it did so with some pretty clear guidance, some pretty clear instruction with respect to at least the Facebook newsfeed and the YouTube homepage, and those core hearts of social media platforms, that the laws are unconstitutional in that respect. But given those very strong statements that the Fifth Circuit got it wrong, why didn't the majority strike down the laws in their entirety? I saw Attorney General Moody of Florida today spinning this as a win for Florida because the laws survived, they're not declared entirely unconstitutional. And so this takes us back to this overbreadth question, and so could you unpack that a little bit for us?
Genevieve Lakie...: I think this was the most fascinating part of the opinions, that every single member of the court despite their other differences, which I think we'll talk about in a little bit. But every single member of the court seems to think that it may make a decisive constitutional difference to the outcome of the case, whether the Texas of Florida law applies either to the Facebook newsfeed or to YouTube. And yes, it's very clear that that's unconstitutional, or instead applies to Uber, or Gmail, or to cite some of Justice Alito's more interesting examples that he provided in his concurring opinion, Rover, the dog walking connect platform. Or BeReal, which I didn't know about before I read this opinion, but now I'm fascinated to learn that it allows users to send photos of themselves to one another during a what, a two-minute window during the day.
Alito suggests that the Texas or Florida laws as applied to those services and the majority makes it clear that as applied to Uber or Gmail may be constitutional. And because they don't know whether these laws are in practice going to apply to these entities, and how significant the swath of entities that fall into the Uber or Gmail category, or fall into the Facebook newsfeed category are, they're going to send it back to the lower courts. Because I think the view articulated by the majority here and that no one on the court really contests is that if these statutes are going to be struck down in their entirety, it has to be because most of their applications are unconstitutional. And the court is just refusing to conclude that most of them are unconstitutional without more fact-finding. This was the big theme carried through all the opinions that you cannot assess the constitutionality of these laws in one fell swoop. You have to assess them as applied to different platforms, and different affordances, and different functions. And the lower courts didn't do that, which is why back they go.
Evelyn Douek: Great. Okay. So this is I think why for some of us it's a relief, at least on its face this opinion seems to be pretty attentive to the nuances of the case. It's not enough to say this law regulates private entities, and private entities should be able to do whatever they want, and so therefore this law is unconstitutional all the time in any way. It seems to think, no, it really matters what kind of private entity, what kind of platform, the different parts of different platforms, what function is that part of that platform playing, and that that really matters for First Amendment analysis. As I say that maybe all of the listeners think, "Well, duh." But no, one of the arguments that had been pushed by the platforms and in the air around these cases was that you just can't interfere with private decision making in this area.
And so, yes, a number of the opinions, certainly the majority seem to suggest that the laws would be valid potentially with respect to platforms or functions like Gmail, or direct messaging, or payment services like Venmo. And so this seemed to be a rejection of the Maximalist position that, for example, the platform's lawyer Paul Clement took in oral arguments. There was this quite extraordinary exchange I think, where Justice Alito asked, "Does Gmail have a First Amendment right to delete, let's say, Tucker Carlson or Rachel Maddow's Gmail accounts if they don't agree with their viewpoints?" And just to pause on that, that's a pretty remarkable question.
Could Gmail just delete the email accounts of people that it politically disagrees with? And Paul Clement as a result of the Maximalist argument that he was pushing in this court responded, "Yes, they might be able to do that, your Honor," which is a very aggressive argument. And so there seems to be a number of members of the court who want to reject that proposition and suggest that that's not okay. But why? Why is that not okay? What is it that's different about Gmail, or direct messaging from the Facebook news feed that is constitutionally salient? How do we differentiate between these different functions?
Genevieve Lakie...: Okay, well, the majority doesn't give us a whole lot to work with when trying to answer that question. And I worry though that I feel like I'm sliding away from the what was great about the opinion, to the what did you say, the critical skeptical tone that we usually take. So I think, sorry, I apologize, I'm adopting the skeptical tone.
Evelyn Douek: It was good while it lasted. We did well, it's 10 minutes. Good work everybody. Let's go.
Genevieve Lakie...: I found this part incredibly frustrating because the majority says, "Look, we cannot overturn these laws. It really, really matters lower courts. You have to do all this fact-finding to figure out how it applies, and then whether or not that makes a constitutional difference." And then the majority opinion provides so little guidance to the lower courts about what they're supposed to do. We know that they're supposed to figure out do these laws apply to Uber? Do they apply to Gmail? Do they apply to Rover? Do they apply to BeReal? Do they apply to these other services? But what then? What do the courts do after that? So Justice Kagan, who wrote the majority opinion, does cite a number of cases in the past in which the court has held that you can regulate entities without triggering the First Amendment even when they are excluding speakers from their property.
And there's two in particular, there's a case called Pruneyard, which is about a California mall that excludes anti-war speakers from the mall. And another case FAIR v. Rumsveld, which is about law schools trying to exclude military recruiters from their property, from their job fairs, because at the time the Don't Ask, Don't Tell policy that they had about gay service members. But the discussion of those cases is very slim, and all we get from them basically is that, well, the government can regulate you. You're not engaged in expressive activity if you're not trying to communicate a message, and you don't object to the speakers who are on your property because of their message. But it also says you are protected by the First Amendment, you're engaging in what the courts typically call editorial discretion online, not only when you speak, but when you assemble or curate third party speech, which is of course what the platform say they're doing.
And it goes through all of the line of cases that have interpreted this very expansively to say it applies, for example, in Hurley, which is this case involving the St. Patrick's Day parade organizers in Boston. The parade organizers had almost never excluded anyone from the St. Patrick's Day parade. I think on one occasion they had excluded a neo-Nazi group or something, white nationalists. And then on another occasion, the occasion that triggers the court case, they want to exclude a group that wants to show that lesbian, gay, and bisexual people are also Irish and want to march in the parade. And the court says, "Well, okay, you almost never exclude anyone, and we don't actually know, and you don't actually tell us what you're trying to communicate by assembling the parade in the way you do. Most of the time you just run the parade and people march in it, and wear green and everyone's happy. But we're still going to give you the right to exclude because we think you're still engaged in something expressive."
And Kagan cites that case very, very approvingly. So on remand on below, it seems like the rules are, well, okay, if a platform or a service doesn't object to a speaker, kicks the speaker... Or say Gmail, closes someone's Gmail account for a reason that has nothing to do with speech, then the First Amendment doesn't protect them. But I think the majority opinion doesn't tell us what to do. What if Gmail says, "Yes, because we are trying to communicate a message about a respectable speech community, and so we are not going to have intolerable views on our service, and we'll communicate that message, and we don't do it a lot, but we do it some of the time."
I don't know what the lower courts are supposed to do given the I think very expansive conception of how editorial rights under the First Amendment apply to curators of other people's expression provided in the majority opinion. But they're supposed to distinguish between when a platform or a service is communicating or producing an expressive product and when they're not. And if they're not, then the Texas and Florida laws it looks like can apply to them. But if they are, then they cannot. I think it's going to be a tough job for the lower courts, and I'm not exactly sure how they're going to go about it.
Evelyn Douek: It is interesting that the court doesn't unpack this very much, or Kagan doesn't unpack this very much. Because I think the suggestion is there's something very intuitive here. Obviously, the newsfeed or the Twitter feed or YouTube homepage, there's something expressive about that. When you open it on your computer, you understand that that's expressing a message. You understand that a parade is expressing a message. But we also don't think maybe that our Gmail inbox, or our DMs on Facebook, or WhatsApp are necessarily expressing a message. And so the court doesn't feel like a need to that very much.
And I think on an initial superficial read, there's something that seems intuitively right about that. But then the question is, can you prevent that entity from engaging in viewpoint discrimination? And it seems somewhat circular because if the entity starts engaging in viewpoint discrimination they can just say, "Well, we're doing this because we want to express a message." And so the moment that they're doing it in order to express a message, then they get out of the law, which would prevent them from engaging in that kind of discrimination. Is that essentially how this argument might work?
Genevieve Lakie...: I think so. There's all kinds of ways in which the majority opinion could have provided courts some set of rules that would make more meaningful distinctions. They could have said, "Well, if the speech that you are providing a home to is addressed to a broad public audience or just to a individual user," think Gmail versus Facebook feed, "that's just different. One is more like a letter. The other is more like a speech. The First Amendment protects speeches. It has a different relationship to the private one-to-one communication. So that makes a difference." Or it could have said, "There are just certain kinds of functions online, Gmail, for example, or email that looks a lot more like what we typically think of as common carriers, and so that's in a different bucket." And Alito in his concurrence in the judgment does advance that kind of line of argument, although in a weird way, but the majority doesn't do any of that.
Meanwhile, it articulates, as I said, this very broad view of what counts as editorial discretion. And so it does seem like just so long as Gmail, or Rover, or BeReal, or any of these sites says exactly as you suggested, "No, no, no, we are really trying to communicate a message." The principles of the majority seems to require courts to accept that to say, "Okay, well then you are protected." And so I'll just say I thought the writ analysis was puzzling. It didn't make a lot of sense to me exactly why this was so important given the way that the majority had framed the issue, and the way it bent over backwards to say, "Those who are curating other people's speech enjoy very broad first Amendment protection, but we're still going to say it really matters if you're applying it to Gmail." But we'll see. Now it's, I guess, to put a positive spin on it as I'm trying to, it means that there's going to be really interesting fact-finding below, and the lower courts are going to have to make sense of this.
And so they're going to have to articulate reasons I think, why we might want to distinguish Gmail from the Facebook feed, and what do we do about Uber, and what do we do about Etsy, and what do we do about Rover? And these latter examples are complicated because Etsy is not a speech platform, it's a platform for selling goods, but I was just reading their community guidelines today for no apparent reason. And they say we refuse to host sellers of goods when they violate our values, and we're committed to a particular kind of environment, and so that looks very expressive. So I don't know, Etsy seems like a really tough case. And BeReal if you're sending a photo of yourself to your friends every single day, that looks very expressive. So I think it's going to be very muddy and difficult for the lower courts, but I'm interested to see what they do.
Evelyn Douek: I think a theme of these cases, both Murthy discussing last week and then these opinions today, it's like the court doesn't really want to have to close any doors, or back itself into any corners about how the rubber actually hits the road. It wants to articulate these general principles say, "The First Amendment applies online as it applies everywhere else, maybe. And that there might be some difficult questions around the edges, but we're not going to decide that today." And I think here Kagan was trying to blame the lawyering in the lower courts, the platform's decision to bring this facial challenge, and then the lower courts going along with that and not doing enough fact-finding.
But part of it also I think is just that the court doesn't want... these are difficult questions and they do raise multiple issues. Every single application may be really, really different, and it's not quite sure how to articulate general principles to guide that. And so we're just going to have a mess of district court judges looking at BeReal going, "Mmh, is this an expressive product? I don't know." Looking at Rover, looking at X, whatever it is, Reddit and looking at community moderation, and all of these... Rumble, I don't know. And trying to come up with this is our future that we now have the next couple of years ahead of us.
Genevieve Lakie...: It is an amazing two-step that at least the majority is engaged in. But also a lot of the concurrences where they say, "It's really, really important to look at the factual differences, the very pragmatic differences in how all these different platforms and services work that really, really matters. But also we're not going to tell you how it matters, and we're not going to really think about it ourselves." Even for example, some of the concurrences. For example, Justice Barrett's, interesting concurrence in which she, again, basically the concurrence is only to make that point, that we really need to think about the difference between different kinds of algorithmic sorting, and the different kinds of corporate structures in particular, whether there's foreign ownership or not foreign ownership, that might make a difference. And that's all very interesting, and to me a little bit worrying about what it says about the TikTok ban.
And so there's all these tea leaves you can read, but there's no actual rule that she even suggests in her concurrence. She just says, "Hey, we should think about this. It might make a difference. Oh look, isn't this interesting?" And then stops. And that's really the character of a lot of the opinions. And so I don't know what to make of this. On the one hand it feels like the court is being more sophisticated in how it approaches the social media, the internet, because it's recognizing that it's complicated and there's lots of different parts. But it's also just not willing to actually say much about what the specific rules should be as applied to social media and when it does, for example, in Kagan's majority opinion, it's very puzzling how lower courts are supposed to apply those abstract principles.
Evelyn Douek: Just on that point though it is very funny that all of these opinions going out of their way, not really to say anything too specific. And then Barrett and Jackson both have these concurrence, which is, "We need to evaluate this at a lower level of specificity, and it might all be relevant, we're not going to tell you how." But then Barrett for some reason does get really specific about TikTok. She doesn't say TikTok, but she might as well say TikTok.
And she essentially says, "Oh, but I don't know about any other example, but foreign corporations that seems really different and that may well mean that they don't have the same First Amendment rights as domestic corporations. And so foreign ownership might affect whether laws overriding content moderation decisions trigger First Amendment scrutiny, and that we may need to, may need to confront such questions when applying the First Amendment to certain platforms." It was just bizarre that she went out of her way to make that point for no apparent reason. But anyway, yes, if I were TikTok, I would be sweating that one. Because otherwise this is quite a good decision for them you would think. An affirmation of corporate speech rights and of content moderation as protected First Amendment activity. But Barrett just wants to go out of her way to say, "But not you TikTok," for some reason.
Genevieve Lakie...: In both these respects, it really reminded me a lot of Citizens United. And I know that's going to seem surprising maybe to some people because the politics of this is so different. And I would imagine that a lot of the people who hated Citizens United and hate Citizens United are much happier with this opinion. But in this opinion too, there was this embrace of a very libertarian conception of a First Amendment that's really going to give a lot of freedom and power to large corporate entities when it comes to making speech decisions. In Citizens United, it was corporations, and here it's the platforms. But is really not paying a lot of attention to the listener rights, or to the rights of other people whose speech is implicated by those corporations. In this case, I think the platform users who fall out of the opinion, there's not a lot of attention being paid to them.
So in that way, it feels very, very Citizens United. And also Kagan in her majority opinion says, "It's not okay for the government to be regulating this kind of editorial discretion, this kind of expressive activity in order to equalize expressive opportunities." And that's the big claim that Citizens United made to building on an early case called Buckley v. Valeo. So it feels really like in that way Citizens United Redux. But also then Citizens United, the majority goes out of its way to say, "But none of these rules really apply to foreign corporations." And so when you get to Barrett's concurrence and it's felt very, I've been hearing the echoes of Citizens United in my head the whole time. And then, okay, it's not in the majority, but Barrett goes out of a way to say, "And actually, also these libertarian rules may not apply to foreign corporations." It is incredible how familiar and how similar it is in that respect, given the different politics and how far away this feels from the Citizens United case and arguments, and all the different array of interests on the various sides.
Evelyn Douek: And just to underline that, the weird politics of it. And the very fact that the people who were probably dismayed when Citizens United came down were likely the people celebrating. Obviously, not by and large, there's lots and lots of weird politics, not uniformly, there's lots of politics here. And so I don't want to overgeneralize. But many people would've found themselves dismayed by one decision and celebrating the other decision. But there are many, many rhymes between them. Notwithstanding the fact that who was the solicitor general that argued Citizens United defending the constitutionality of the campaign finance regulations. Do you remember Genevieve? Nothing much happened to them, did they? Where did they end up?
Genevieve Lakie...: Yeah, it was a nice lady named Elena Kagan. I wonder what happened to her.
Evelyn Douek: Yeah, exactly. So lovely.
Genevieve Lakie...: She wrote some majority opinions on July 1st, 2024. It's incredible. She argues Citizens United for the government, she challenged all of the rules that then in this case she is articulating. It is an incredible historical irony.
Evelyn Douek: And it does feel like maybe and some of this very aggressive libertarian language in the majority opinion, in the NetChoice case feels like maybe the price of getting the majority. There were a couple of pages in there that felt like maybe they were written by Justice Kavanaugh or could have been written by Justice Kavanaugh, including this citation to Buckley. This famous statement from Buckley that the government may not restrict the speech of some elements in our society in order to enhance the relative voice of others, that you cannot level the playing field even if private actors or the market, both the marketplace of ideas or literally the economic marketplace is not serving expressive interests well or serving diverse perspectives well. The government can't interfere. And this was something that liberal ideology, leftist ideology for a long time rejected. And yet Kagan, wholeheartedly, embraces here in quite an amazing way without reservation.
Okay. So we truly failed at staying positive, but before we go completely out of the positives, there is one other part of the decision that I think is worth highlighting that seemed promising. So you mentioned this when we were talking about the laws. But as our discussion has focused on the content moderation provisions and indeed the oral arguments at the Supreme Court focused on these restrictions on platforms, content moderation. These laws also had a whole series of disclosure and transparency requirements. And the court, although it barely talked about these in oral arguments, did find itself having to say something about this in its opinions that it issued today.
And this was another area of surprising unanimity where the court suggested that... Well, it suggested that certain disclosures may be problematic, and in particular it suggested that the individual notification requirements to users about every content moderation decision might be problematic. But it did so in a way that people like me who are generally in favor of more transparency from platforms, we remain happy. So can you explain a little bit about what the court said about mandated disclosures and why we could be slightly optimistic about it?
Genevieve Lakie...: Well, the first big thing it said was that the lower courts also have to look at the facts when it comes to mandated disclosures, suggesting that here too, even if some applications, some disclosure requirements as applied to some platforms, platform services are unconstitutional, others maybe many might not be. And the majority opinion does go out of its way to say even if some things that Texas and Florida law did are unconstitutional, there's lots of ways in which the government can regulate the social media platforms. And maybe one of the things she's thinking about is disclosures. So there's a way in which advocates of more transparency online, more disclosures could be very happy with this opinion.
The opinion doesn't say a lot about it. But in a footnote, it also suggests that courts when evaluating these disclosure requirements should apply the relaxed scrutiny standard that was first put forward in this case called Zauderer, which is now it's very contested whether that's the rule that you should apply to disclosures that don't have to do specifically with advertising, but a broader swath of commercial related speech. And again, this was incredible. All members of the court seemed to assume that on remand, the standard to apply for the disclosure provisions is Zauderer. And now Thomas, Alito and Gorsuch do so grudgingly, they say that the argument that Zauderer isn't the right standard, this relaxed standard scrutiny isn't correct, has been forfeit below, that the lawyers just didn't raise it. And so there's no going back. Maybe it doesn't apply in the future.
But there are only three, and it feels like all six other members of the court think Zauderer is the standard. And if that's the case, that could be one of the most consequential outcomes of this opinion. Again, not entirely clear, a lot of this was done in footnotes, very quickly, very elliptically. But there has been a big debate about how to think about disclosures online and disclosure requirements, and whether we're going to apply very stringent scrutiny like we do the must carry provisions, or this much lower standard.
And the court seems to be fully behind an expansive reading of this relaxed scrutiny standard, even while, and this is the big caveat, and this is what I'm not sure about, it suggests that when applying this standard, the courts need to be attentive to whether these disclosure requirements impose a "undue burden" on the editorial discretion, and expressive freedom of the platforms. And so if we have a very expansive view of what counts as editorial discretion or what counts as expression online, you could imagine that it's going to be for these disclosure laws to survive this undue burden analysis. So in practice, I'm not sure, I think there's going to be a big fight about which disclosure laws, what kinds of disclosure laws are constitutional. But in theory at least, this is a pretty pro-disclosure... could be read, could be read as a pretty pro-disclosure opinion, and so that is good.
Evelyn Douek: And fortunately, there are going to be lots of cases teeing these questions up for both lower courts, and if the Supreme Court is interested the Supreme Court. Because we have all of these disclosure laws around the country, we already have lower court decisions from New York and California dealing with these questions that could neatly tee up these questions. So that's definitely something to watch.
Genevieve Lakie...: And there are so many open questions. What's remarkable about opinion it was like what did you say 96 pages. There's a lot of words on the pages, but there are so few answers on those pages. And so I think there is going to be a lot of work. A lot of litigation. This is good for First Amendment lawyers, may be bad for others. But there's just going to be a lot of fighting about what all of this means on the lower courts. We are by no means done with us when it comes to judicial processing of these questions.
Evelyn Douek: And podcast processing. First Amendment lawyers and podcasters rejoice, we are in business for a while.
Genevieve Lakie...: See, look, back to a positive tone. That's right.
Evelyn Douek: That's it. One other thing about the majority to talk about before we move on to some of the other concurrences, was this question of legislative motive and legislative purpose that I think was a distinctive part of Justice Kagan's analysis. So one of the things that she focused on, we talked about this a little bit, the idea that the impermissible legislative motive here was in order to correct the playing field, level the playing field. But she goes further than that Justice Kagan also talks about specific statements from the legislatures and lawmakers in Texas and Florida that were highly politically charged and politically motivated, and about getting back at the leftist oligarchs of Silicon Valley, et cetera. And suggesting that this improper First Amendment motive was a problem. But that potentially, if the legislature had a different motivation... I think this is again one of those open questions, how much did that matter to the analysis?
Is she suggesting that if the legislature had a different motivation, it might be more likely to survive constitutional scrutiny? Now this is something that is, again, not surprising to see from Justice Kagan. One of her big academic articles when she made her name as an academic was about how the First Amendment, the whole point to the First Amendment was about sniffing out improper legislative motive, or improper governmental motive, and not allowing the government to crack down on speech purely because it didn't like it. And so if that was what was happening in these cases, that's clearly unconstitutional. But there might be a whole other range of reasons why the government might want to regulate platforms and their content moderation practices. Now, this obviously I think would be an area of intense disagreement around the majority, and you would lose the unanimity that you have. But I'm curious what you made of those statements, how much to read into them, do you think motive is going to play an important role in future cases?
Genevieve Lakie...: I don't know. I agree with you. It was really interesting and I imagine that there was a lot of complicated negotiations behind the scenes about these portions of the opinion. And I think this is another area where the opinion seems on first read to be pretty pro-regulatory. Again, Kagan goes out of a way to say social media creates all these new kinds of problems. Problems, for example, to teen mental health, addiction, things of that kind. And so perhaps there are responses that governments can have that would be constitutional that are different from the laws before the court. So that all seems good. I saw on Twitter people spinning this, as this looks really good for the wide range of social media laws that have been enacted to deal with these problems in the last few years. But once you push in it, I'm not actually sure that this does end up being such a nuanced take. Because ultimately, the standard that the court applies here is strangely enough by the way, it doesn't decide whether or not strict scrutiny or intermediate scrutiny should apply or whether it's a content-based or content-neutral law.
Again, it's deciding as little as possible. It is not giving a lot of instruction to the lower courts. But it says, okay, let's assume that this is an intermediate scrutiny standard. Then the standard has to be that the government's purpose is unrelated to the suppression of expression, this is from the O'Brien case. And honestly, most of the social media laws that are not about disclosure are going to have purposes that are related to the suppression of expression. Even when you're regulating to protect teen mental health, you're going to be doing it because the expression that the stuff that they're reading online is bad for their mental health. So you are suppressing that expression in order to prevent them from having a bad body image or thinking bad things, or becoming addicted to bad substances that is related to the suppression of expression. So even though the first time you read it may suggest that, oh, this law is problematic because of this specific motive.
But other laws that look much more within the ordinary run of what the government is trying to do when it's regulating platforms, those are going to be okay. I think once actually litigated courts are, if they're applying the standard, they're going to conclude that, "No, this is not okay under the First Amendment." And so again, I think this is actually in the end a pretty deregulatory libertarian approach to the First Amendment with a big caveat. I found this really complicated part of the opinion, because I think there is a path that the court could have taken which could have resulted in the invalidation of the laws entirely. Which was to say, this isn't really about what Kagan suggests it's about, which is about the equalizing of expressive opportunity, and making it fair for all people to participate in this conversation, similar to the campaign finance laws that try and allow less wealthy people to participate in political conversation and influence.
And as with Citizens United on that reading of the law, that's no good under the First Amendment because the First Amendment doesn't allow us to have equality, expressive equality. Okay, I'm going to leave that aside. But there is another way of thinking about the law, which is that it's a retaliation law. And I think a lot of the comments that she points to, and Evelyn you talked about that are actually included in the opinion from the lawmakers in Texas and Florida. They seem less about expressive equality per se and more about punishing their enemies, west coast elites who are articulating a viewpoint that they don't like. And I think this is how a lot of people read these laws, they're part of the culture wars. It's conservative lawmakers getting back what they think of as overly liberal tech giants, who are articulating an overly lefty point of view.
And there was an argument below made by the platforms that these laws are retaliatory, that they're a form of viewpoint discrimination, and the First Amendment does not allow the government to engage in viewpoint discrimination. So the court could have said, "Actually, this bad motivation of the government has poisoned the entire law and we can just strike them down." Maybe if they'd been enacted for other reasons, we could do this kind of nuanced remand, and think about them as applied to Etsy, and applied to Uber. But when you have a law that is motivated by a really unconstitutional purpose, you just don't want to allow the government to do that. Viewpoint discrimination is never okay. And it is interesting to me, particularly given Kagan's focus as a First Amendment scholar on these questions of government's intent, and bad intent, and motive that the court did not do that.
Not one of the majority opinions even hints at that outcome, they're all concerned with preserving the laws and making it possible to reach a conclusion that some instances of these laws are constitutional. And so there's a way in which the court could have gone much bigger. It could have struck the laws down. And I think there was a lot of good reason to think that that is what's going on with these laws, this is about viewpoint discrimination. But instead it takes the somewhat narrower approach, but I think a narrower approach that is in fact ultimately going to make it harder for government to defend laws that are concerned with mental health, and body image, and all the other things that lawmakers are worried about, but are actually maybe not part of the culture wars, and are maybe not viewpoint discriminatory, the court's not making that distinction.
It says if you're related to the suppression of expression, then the first amendment applies and you're going to have a tough time defending the law. And so I think thinking long-term, that doesn't give me so much comfort if I want lawmakers to have a good opportunity to regulate in ways that are relatively narrow but reasonable, and addressing the kinds of harms that we are seeing that social media may cause. But of course for people who think that the government cannot do that well, and that a lot of what the government is doing when it's enacting these laws is responding maybe to moral panics, or regulating in ways that is not grounded in criticism, or targeting disfavored speakers, then they should be very happy with this portion of the opinion, because it's going to make it much harder for there to be this kind of content based regulation of the internet.
Evelyn Douek: So that's the majority. Let's go over into the upside down and the concurrences, the "concurrences" of Thomas and Alito. Now, Justice Thomas didn't say very much, well, he said quite a lot, but for our purposes didn't say very much super interesting. His portion of the case was dedicated to an argument that we shouldn't do facial challenges at all, and they should be done away with entirely, which is probably too wonkish to go into even for this podcast. So we're going to leave that aside, except to note that it's really interesting that he didn't say anything about the merits of the case at all. Given that it was his opinion, his concurrence in Biden v. Trump a number of years ago that laid out exactly the legal theory, that explicitly invited the Texas and Florida laws that were later enacted, that came to the court.
He had sort of set out, "Here are the ways that you might argue that content moderation and social media platforms is constitutional, go forth." That's exactly what Texas and Florida did. And then it comes to the court, and he doesn't say anything about it at all in substance. Now, he did join Alito's decision, which we'll get to in a second, and which did say a bunch about this. But it is interesting that he didn't feel the need to say anything. And I don't have a theory about why he didn't. It was definitely a surprise to me. I expected a long exegesis from Thomas about history of common carrier laws, and all the way back to the founding, and here's how to think about railways, and telegraphs and all of this sort of stuff, and the history and tradition of regulating exactly this kind of entity. But we didn't get any of that, and I don't know why. I don't know if you have any theories about what Thomas was doing there?
Genevieve Lakie...: I have a little bit of a theory, which is that you could just say he passed the baton to Alito, and thought Alito did a good job writing for him. But maybe he just wanted to emphasize his bigger point, which is I told you so to the majority, because Thomas has long been a opponent of overbreadth, First Amendment overbreadth, and these facial challenges where you strike the law down not because of how it applies to any specific speaker or entity, but on its face to everybody.
And the majority had just said, "Oh wait, this didn't work very well in this case, this has caused all kinds of problems. We cannot do that." And so Thomas just takes his concurrence to say, "These facial challenges are a really bad idea, and I've been saying this for a long time, and I'll continue to say it, and they're really, really bad." So I just read his opinion as a big, I told you so to the majority, and that he was really enjoying just telling them so, and didn't want to dilute his message by talking about other things. But I'm sure that there's a better theory.
Evelyn Douek: Good day for Justice Thomas, I think, in many respects. So Justice Alito's "concurrence" then, which I think you referred to as basically a dissent, which seems right. It seems to be coming, again, like the decision in Murthy that we were talking about last week. Justice Alito seems to be in a different universe. He puts content moderation, the words in scare quotes and says derisively that, "This is a gentle sounding term used by internet platforms to denote actions that they take purportedly to ensure that user provided content complies with their terms of service and 'community standards'." Suggesting purportedly suggesting that actually what platforms are doing is slanting... He doesn't say it explicitly, but clearly the implication there is he's suggesting that there's bias, and that they're not just applying their community standards in an even-handed way. So again, starting out strong justice Alito here. So we know where he's coming from, but he does join in the judgment. So how in substance does his decision differ from the rest of the opinions? Why are we talking about this as if it's basically a dissent?
Genevieve Lakie...: Well, he agrees with majority that there'll be times in which the Texas and Florida laws or laws of their kind are not constitutional, and then there are going to be times when they are constitutional, which is why he joins in the judgment. He seems to have been convinced that, okay, it can be remanded and we're going to take a look at which applications are constitutional, which are not. But his view of where the line between these two things is drawn is so different from the majority view, which as I said earlier on the majority's view, so long as you are engaged in any curation, even only a little bit of the time you're good, you're protected by the First Amendment. The government doesn't get to tell you what speech you can host and what speech you can demote.
Whereas Alito thinks on remand that court should treat this inquiry as part of a common carrier analysis, should maybe bring the aspects of common carriage law to the platforms which says essentially, so long as you deem a platform a common carrier, you can impose total non-discrimination duties on it. This is a different universe as you say from the majority. He says the fact that the platforms are using algorithms, and that only small portion of the content moderation decisions are made by humans, maybe that should make a difference. Of course, that's not really in the majority at all. He wants courts to think about the power of network effects, and how that enhances the power of these entities. And that is very contrary to the Citizens Unitedy approach taken by the majority.
And he goes out of his way to make clear in a footnote that he thinks that, okay, maybe equalizing expressive opportunity is a no-no, but fighting invidious discrimination that is a compelling government interest and that is what is at stake here. And so he disagrees with the majority both about how the rules apply, but also about its analysis of the motives that are powering Florida and Texas. He's trying to provide, I think, just a very different vision of the First Amendment, and how the principles that court should apply on remand. Now, I don't know how to think about this.
If I was a trial court and I get this back in my lap, this difficult case, and I've done my fact-finding, and I am looking at the different kinds of platforms and services that are subject to regulation by the Texas and Florida laws. There's the Kagan majority, which gives me some, but not that much guidance. And then there's the Alito concurrence in the judgment, which gives a lot more information, but it's hard to square the two. I don't know if they're going to turn to Alito, if his guidance is going to influence how the courts actually go about the analysis that they now have to go about. But that's clearly what he's trying to do. He's concurring in the judgment in order to provide a completely different reading of what should happen next. And I think it's going to be very interesting to see how influential this is going forward, but it does feel like it's from a different First Amendment universe.
Evelyn Douek: And even Alito who does deal with these issues in more detail, I don't think gives a lot of guidance or a lot of bottom line outcomes for the lower courts in how to deal with this when push comes to shove. And so I feel very sorry for the lower courts I have to say in all of this, where they're getting these cases back in their lap after all of this time, and being told to think harder, work harder, get some more facts, and then, I don't know, get it right this time, good luck. What's going to happen? It's going to go back down. The majority has made it very clear that it's unconstitutional as applied to the Facebook news feed and the YouTube homepage, that's explicit. But literally, anything other than that, not even the TikTok for you feed is covered by... well, Justice Barrett is suggesting that that's going to be different. Beyond those core presumably the Twitter feed or X feed is the same, but I don't know what you do anywhere even slightly removed from that.
And so it's like we avoided the worst case scenario of the internet being broken, and I think that that's why people are celebrating, and it's certainly not the worst decision that the Supreme Court issued today, let alone this week, so there's that. But did it actually decide all that much other than, well, no, the really blatantly unconstitutional stuff that's still unconstitutional, but all the other more difficult questions? I don't know how much guidance it actually gave and what's going to happen, is it just going to bubble back up again? Like the lower courts are going to do their best or not do their best, as the case may be to come to considered outcomes, and are we just going to be back in this situation a year or two years from now?
Genevieve Lakie...: Yes, I think there's a good chance that this just comes right back up to the court. And that maybe it's assuming as much that it took this case, it reached some conclusions, and then it's just very confused about so much else. So it's just sending it back to the lower courts. Good luck lower courts, have fun. And then at some point is going to decide that it did like or it didn't like what they did, and maybe they'll be different members of the court, and maybe they'll have reached different agreements. But I think of this as a decision not to decide. Even Alito's concurrence slash dissent, and Alito is one of the justices who has been pushing the court to hear this case the hardest, and seems to have the most developed thoughts on the constitutionality of these laws.
Even here I thought it really summed up the tone of so many of these opinions very well, when he's talking about the fact that most of the content moderation decisions on the large platforms are actually carried out by algorithms. Doesn't say, well, that makes a difference in this way or that way, he just says, "Should we at least think about this, that it makes a First Amendment difference?" That's no guidance at all, that just seems plaintiff and confused. And so I think the message to the lower courts is, "Good luck and we'll see you in a few years," basically. And so although the opinion is significant and it tells us some things, it leaves so much else open.
Evelyn Douek: And of course that's massive deja vu from about a year ago, where we had these big platform cases at the Supreme Court. Last year, it was Gonzalez and Taamneh about Section 230 and liability for recommending content. And everyone, they were billed as the social media Super Bowl, the First Amendment, and in that case, not the First Amendment, but how the internet is going to be regulated. And the court, of course, famously punted. And I feel like we are again in the same situation where we've spent a year hyping these cases. I'm sorry, listeners, we've been hyping these cases, the cases that are going to finally answer some of these questions. And in actual fact, it doesn't answer very much at all. And it just feels like the Supreme Court feels like these are hard, these are hard questions and it's not quite sure what to do about it.
Genevieve Lakie...: Yep. But it's great for lawyers.
Evelyn Douek: That's right.
Genevieve Lakie...: Lots, lots, lots more to say as things develop. And I suppose maybe it's not so bad for the platforms because I think that there's just no question these laws are going to continue to be stayed, they're not going to be enforced even though the court hasn't struck them down. And so It's going to continue to be theoretical, the meaning of these laws. And I assume that other states that have been thinking about passing similar laws to the Texas and Florida laws are also going to wait, and they're just going to keep waiting, because this is going to take a while.
Evelyn Douek: I think that's right. I think no matter how hard Attorney General Ashley Moody is trying to spin in Florida, the lawyers at NetChoice and in the platforms are probably feeling pretty good right now, sitting happy. Except for TikTok who is sweating profusely. So not a great summer for TikTok and TikTok's lawyers. Our condolences. So with that, this has been Moderated Content. 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. And we will be back with some non-SCOTUS related content very soon. See you then.