Several recent cases before the Supreme Court have raised important questions at the intersection of technology and law. In this episode, Alex Abdo of the Knight First Amendment Institute, Clay Calvert of the American Enterprise Institute, and David Greene of the Electronic Frontier Foundation, join Jeffrey Rosen for a conversation exploring key tech cases, including Netchoice v Paxton, Murthy v. Missouri, Lindke v. Freed, and O’Connor-Ratcliff v. Garnier. This program was streamed live on January 16, 2024.
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Today’s episode was produced by Lana Ulrich, Tanaya Tauber and Bill Pollock. It was engineered by Kevin Kilbourne and Bill Pollock. Research was provided by Samson Mostashari, Cooper Smith, and Yara Daraiseh.
Participants
Alex Abdo is the inaugural litigation director of the Knight First Amendment Institute at Columbia University, where he has been involved in the conception and litigation of most of the Institute’s legal challenges. Prior to joining the institute, he worked at the ACLU, where he was at the forefront of litigation relating to NSA surveillance, encryption, anonymous speech online, government transparency, and the post-9/11 abuse of detainees in U.S. custody.
Clay Calvert is a nonresident senior fellow in technology policy studies at the American Enterprise Institute. He is also a professor of law emeritus at the Levin College of Law and Brechner Eminent Scholar Emeritus at the College of Journalism and Communications, both at the University of Florida. He is the lead author of the textbook Mass Media Law, 22nd ed., and author of Voyeur Nation: Media, Privacy, and Peering in Modern Culture.
David Greene is senior staff attorney and civil liberties director at the Electronic Frontier Foundation. He is also serves as an adjunct professor at the University of San Francisco School of Law. He has significant experience litigating First Amendment issues in state and federal trial and appellate courts, and previously served as executive director and lead staff counsel for First Amendment Project, where he worked on numerous cases including Bunner v. DVDCCA.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also a professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
Additional Resources:
- Knight Institute amicus brief (in support of neither party) Moody v. NetChoice & NetChoice v. Paxton
- Clay Calvert, “Friends of the Court, Friends of the First Amendment: Exploring Amicus Brief Support for Platforms’ Editorial Independence,” AEI (Dec. 22, 2023)
- Knight Institute amicus brief in Murthy v. Missouri (in support of neither party)
- Clay Calvert, “Persuasion or Coercion? Understanding the Government’s Position in Murthy v. Missouri, Part I,” AEI (Jan. 8, 2024)
- David Greene, “In Jawboning Cases, there’s no getting away from textual analysis,” Knight First Amendment Institute (Nov. 7, 2023)
- David Greene, EFF Amicus Brief in O’Connor-Ratcliff v. Garnier and Lindke v. Freed (in support of Lindke and Garnier)
- Miami Herald Publishing Company v. Tornillo (1974)
Excerpt from Interview: Alex Abdo on the question regarding when public officials' use of social media becomes subject to First Amendment limitations.
Alex Abdo: Well, the most important legal question presented by the cases is when public official use of social media is subject to the First Amendment, which is actually a state action question. Unlike the main question at issue in the Murthy case is the question of when public officials who are interacting with their constituents or furthering their official duties using their social media accounts, you know, when or whether and when their use of those accounts is subject to First Amendment limitations with the main one that we would care about being the prohibition on viewpoint discrimination.
Because if the First Amendment is held to apply to public officials who are using their accounts in this way, then they can't silence their critics much in the same way that public officials can't silence their critics in town hall meetings or other traditional public forums. What the plaintiffs in these cases are arguing for is very similar to what the Knight Institute was arguing when it filed a suit against when former President Trump, when he used his Twitter account very much as an extension of his office and began blocking critics which is an, an order forbidding public officials from silencing their critics in these forum you know, on the basis of viewpoint.
Unfortunately, one of the two circuits, the Sixth Circuit in the decision below in one of the decisions below adopted a very formalistic understanding of when public official use of social media is subject to the First Amendment. And it essentially held that it, you know, public officials in their use of social media are subject to the First Amendment only when they use state resources or have an explicitly set out duty in regulation or in law requiring them to use social media in furtherance of their official responsibilities. And those are very narrow circumstances.
Most public officials who engage with the public using social media are not doing so because there is a law that requires them to do so. Some use state resources. Former President Trump relied on official federal employees to help him administer his account. But many public officials, especially at the local level, don't have the resources to rely on in their offices to help administer their accounts, and even when those accounts become an important tool of governance or an important avenue through which they disseminate important official information to the public.
And so what I would like to see the court do is adopt the standard test the court uses to distinguish between state action and private action in other contexts, which is to look to see whether the official is you know, using their account as a tool of governance, whether, and whether their use of it is fairly attributable to the state.
And again, as with the Murthy case, the legal lines here are a little bit mysterious, you know context dependent. I understand the instinct that some may have in the face of an uncertain totality test to gravitate toward a test that is maybe easier to administer, but loses some of the nuance. I understand that, but I think that'd be a mistake in this context because it would be a roadmap for public officials to create echo chambers in their online engagement with their constituencies, which is now, you know, one of the most important ways that public officials engage with the public.
Excerpt from Interview: David Greene on the difficulty in defending laws targeting social media platforms.
David Greene: I think the only way to defend, the best defense of these laws is to actually have a view of social media that doesn't reflect what social media actually is. So I think the best defense of these laws is that social media is, are sites that are open for anybody where people can freely publish to the audience of their choice. And because of that, there's some type of function that guarantees people access.
That really is the, whether you frame that as common carriage or, or something else I don't know, but I think that's at least sort of the best, the best defensive framework. I think that fails though, because first of all, that's not really what social media is. Social media always has been really from its very inception, been a curated process. And these laws actually directly attack and, and really you could say are most concerned with recommendation systems which are really inherently not open and passive and free flowing, but really controlled top down by, in a very typical editorial, editorial function. So I have a hard time defending the must carry provisions here.
In terms of what I think why I think the court is interested in this topic, I think we've seen several efforts over the last few terms by the court to want to say something about the current state of First Amendment and the internet and maybe social media in particular. And they seemed to have the past really chosen bad cases to do that. And then when they finally get into the cases, they end up going someplace else with them. And I think we probably saw that most clearly last term with Gonzalez versus Google and Taamneh versus Twitter, where they seem to have taken these cases, you know, to finally say something about Section 230 and maybe even say something about first Amendment rights of social media companies.
And then realized, I think very, once they got into, you know, the briefing and look at the cases closely, that the cases really presented a poor opportunity for that. And they, and they dodged the issue, and just as they had dodged the issue largely in, in cases in previous terms. Here, I think, you know, they've taken five cases, and we'll talk about the other ones later, and I really think they're hoping that maybe at least one of them will give them the opportunity to say something, you know. I, with this court, there's always the possibility of them wanting to take a closer look at a case decided that has been seen to be established law.
And so I don't know if this, there are at least one or two justices on this court who want to reconsider. They're the seminal holding in ACLU versus Reno that we treat online speech in an unqualified manner, that it's not treated, it's not considered exceptional in the way that broadcast radio and television were considered exceptional. It's not an issue that's being, it's not an argument that's being directly pushed by anybody in these cases, but I wouldn't completely discount at least one Justice wanting to say something about that. So I do think that these cases really will, it's gonna be difficult to avoid the First Amendment issues in these cases. I think we'll find out something about what the court thinks.
Excerpt from Interview: Clay Calvert’s final thoughts on the unusual approach taken by the Fifth Circuit in upholding Texas laws.
Clay Calvert: The Fifth Circuit, which upheld it's important to note Texas laws and said they were perfectly fine. That decision was bizarre for any traditional First Amendment analysis. It really reeks of a text history and tradition approach, which is designed to appeal. Jeffrey, as you started out to Justice Thomas increasingly the conservative justices in the Second Amendment cases at least, right, are all about what does the text say, what's the history and what's the tradition of this?
And the Fifth Circuits the majority opinion really went down a text history tradition approach that creates an opening if Thomas wants to go there and maybe pull Alito in to take a very different analysis than we typically see in first Amendment cases, which is it speech? Does the speech fall into an unprotected category? If it doesn't, then it's protected. And then if it's content based law, you apply strict scrutiny. If it's content neutral, you apply intermediate scrutiny. The Fifth Circuits analysis really didn't do that, and I think it really helped to tee it up if the conservative justices want to go there.
The bottom line I would say to go to have big picture principles here is, and it something somebody else mentioned earlier, the Reno versus ACLU case, maybe David mentioned that from 1996 where the Supreme Court or '97, the United States Supreme Court said that we're gonna treat the internet speakers, like speakers in the print medium and not narrow their first amendment rights like we have done with broadcasting and cable. And so I think that's another issue here. Are they gonna revisit that major principle? I don't think they'll reverse that. Some justices, again, Thomas might want to go there. I don't think that's gonna happen.
The whole net choice cases are all about the ability of private businesses to create their own speech based communities that they want to enforce themselves. And now the government is telling them, mandating, you must host speech that you don't want to. So they're interfering with that. So one of the key things that's going to be, there's a case called Miami Herald versus Tornillo from 1974, which basically said the Supreme Court said, you cannot print, newspapers, cannot be compelled to host replies from candidates for public office that are attacked. And Florida had a statute saying that, "Well, okay, if you're a candidate for public office and you're attacked by the Miami Herald as Tornillo was, he gets free space." And the Supreme Court struck that down and said, "No, that violates the rights of editorial control and discretion that a print newspaper has." and that principle comes up in this case. And it's not a clear square analogy. They don't, they're, they're different, right? Print newspapers are different than social media platforms, but that's gonna be something that the court's gonna have to wrestle with here. So I'll stop there.
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