September 25, 2024 • 53 mins
In this episode of "The Fourscore Project," Roger Clark concludes his insightful discussion with Professor Barry McDonald from Pepperdine University, focusing on the evolving landscape of free speech in the age of the Internet. With the Supreme Court poised to hear significant cases in 2024 that could reshape the concept of free speech online, McDonald and Clark explore the implications of these potential rulings for democracy and public discourse. They delve into the complexities of Section 230 of the Communications Decency Act, the debates surrounding social media platforms' rights versus users' rights, and the broader consequences of these issues for free speech in the digital age. The episode also touches on historical perspectives on judicial power and the role of the Supreme Court in shaping American democracy.
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Episode Transcript
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(00:20):
My name is
Roger Clark, your host for thisedition of The Force Gordon seven Project,
a production of the New MajorityFoundation.
Our topic today is Free Speechand the Internet.
2024 may be a watershed yearfor this issue,
and there's a lot of people who believethat the Supreme Court
has its crosshairson free speech in the Internet
(00:43):
because they've accepted by last count,four major cases
that are going to give significantdefinition to the concept
of free speech in the Internet worldthat we live in today.
There are many who believethat the answers
that the Supreme Court gives to this issue
will determine whether or not we continue
to have a successful democracy or not.
(01:07):
We are very fortunateto have as our guests
to discuss these issuesand what's going to happen in 2024.
Professor Barry McDonald
from the Pepperdine
University Caruso School of Law.
ProfessorMcDonald is an illustrious professor.
I don't mean to embarrass you,but you've got a tremendous CV resumé
(01:29):
upon graduationfrom Northwestern Law School.
Once upon a time, you clerked for ChiefJustice William Rehnquist.
You became a professor without eliminatinga lot of stuff in between.
But you've been a professor at Pepperdinefor a good close to a quarter century, I.
Believe, now 23 years.
A prolific writer.
(01:51):
You're a scholar at Pepperdine
on constitutional law with a particularemphasis on First Amendment issues.
You have appeared on CBS, Fox News,a variety of cable
and network television and print media
such as the Washington Postand The New York Times and others as well.
We're very fortunateto have you with us, Professor McDonald.
(02:12):
Well, thank you, Roger, for having me.
So this is a lot to unwind.
We live in a very complicated time.
A lot of issues that are new and novelthat we're all wrestling with.
There are many of us, including me,who feel like we live
in the Dodge City of Communicationsand because of
because of the invention of the Internetand the creation of all these social media
(02:34):
websites and Internet service providersand so forth and so on.
So it's a lot to unravel. Tell us,
where do we start unraveling this?
I think you start unraveling it.
You call it dodge City, the Wild West.
It sort of is.
I mean, the Internet is relatively newand in modern
and it can be a cacophony of voices.
(03:00):
But I think what you're seeingis sort of a evolution
of the same model that you hadwhen you had traditional broadcast,
which is certain players,social media companies,
you know, like Facebook, Instagram,YouTube,
TikTok, X, you know, funneling the vast
majority of of those communicationsbetween people.
(03:22):
And so
they are sort of becoming the gatekeeperin a lot of ways
to substantial stream of communicationin this in this modern society.
So I think that that focusing onwhat's going on in those platforms
does help us to sort of figure outwhat what the issues are
(03:42):
and what we need tobe dealing with or paradigm.
As I understand it.
And pleaselet me know where I'm going to drift
drift off center on thisbecause I know I'm going to drift off
center on some of these points.
But since 1996,
I think was the CommunicationsDecency Act of 1996,
(04:03):
which we've all heard about thisinfamous or famous
Section 230 of that act,
which there has been so much discussionabout it over the years,
but at least since that act,and that's been almost 30 years ago now,
that the assumption is that
the social media sites these Internet
(04:24):
service providers basically function
more like a traditional newspaper
than they do a commentator.
But with exceptions, because with Section
230, they're deemed not to be a publisheror a speaker.
So they have a immunity clause.
But then there'sanother section of the 230
that says they can moderate content,they can delete posts
(04:48):
basically for any reasonthey want to subject to an undefined term
of good faith,
which which again, to me strikes mea little bit that that Wild West analogy
I was talking about, which kind of putsin to my sense into issue is
whoseright of free speech are we talking about?
Because I know
that the social media platformwill claim it's our right of free speech.
(05:13):
And there are a lot of people out therewho say the ones who are using
these social media platforms are saying,no, it's our right of free speech.
So where do we go?Well, you're quite right.
There's twowhen you're talking about free speech on
social media sites, you'retalking about two layers of expression.
You're talking about the speechthat occurs by the users of the site.
(05:34):
And you're also talking about the speechor expressive activities
of the site itself in terms of curatingand moderating the content.
And in terms of Section 230that was adopted on the that was
when the Internet was just getting goingand it was adopted on the theory that
we need to
provide some breathing spacesfor these new Internet companies
(05:56):
who are hosting content to be ableto do that without fear of liability
from harmful content or illegal content
that their users might host.
And, you know, and I think it wasit was good
and the idea was good in its inception.
But I think
(06:17):
once you get going with something,it becomes hard to change.
And I think we do need to revisit Sectiontwo three because now we have
these bimbos, you know, of of the Internetlike Facebook meta.
Now I guess
X, you know, Google, YouTube.
I don't I just don't think I don't thinkit's striking the right balance now.
I don't think those companies needthat sort of protection from immunity.
(06:40):
And in fact, I think it probably doesmore harm than good
in that they can be more lax in terms of,you know, harmful content
that might appear on on on their platformsand and not doing anything about it
or they should have done something,but maybe they didn't. And
so I think I think we you know,we need to revisit section 230
(07:03):
and it balance trying to strikebetween these
these business entities and
you know,
generating that free flow of informationon the Internet that we're looking for.
Well, let me let me just posea hypothetical for just a minute.
And let's assume for a minutethat you become the communications czar
(07:24):
of the United States and you havethe ability to, with the stroke of a pen,
revisit section to 30 and modify
it to create a better balance.
In today's reality.
What would you do?
I mean, I might remove immunity
altogether from sites, companiesthat have,
(07:46):
you know, a certain net worth,you know, And
I think those kind of companies,you know, they're lawyered up to the max.
I mean, can sort of adoptthe sort of policies that they need
to make sure that their platforms
are being used responsiblyand I think the legal doctrines in place
(08:08):
that would shield companies like them
other than Section two under Section 230,if they're making good faith efforts
to make sure that,you know, their content,
their their platforms aren't misused,
you know, would probably do the trick.
The existing doctrines,the existing immunities that are out there
in the in state law and so forth.
(08:30):
I mean, I need to I would need to sit downand really take a look at this.
I'm not, you know, an expert on Section230 by any means.
That's more of a communicationslaw sort of issue
than a constitutional free speech issue.
But that's my sort of offthe top of my head thinking about that.
Well, it seems seems thatthe biggest thing that gets gets people
(08:53):
agitatedis is the political content of, quote,
the so-called moderation that goes on withsocial media sites and and
and that'swhat gets people really angry or
on the other side, maybe pleased.
It depends upon what your political stripemay or may not be.
(09:16):
And there seems and the perceptionin any way
is that the moderationfrom the Facebooks of the world and,
you know, X or which formerly Twitterand all of this sort of stuff is is is if
not in favor of the right of centerpoint of view.
And whether that's right or wrong,
(09:36):
that is certainly is a perception.
And I think that a couple of the casesthat are pending before the Supreme Court
are the state of Texasin the states of Florida, passed laws
that were intended
to limit the abilityof the social media platforms to moderate
(09:57):
points of view,particularly political points of view.
And I think those are the there's
one caseout of Florida, one case out of Texas.
They've had different journeys
in the lower courts,but they've now both been joined together.
I think the Supreme Court has agreed totake those cases on and hear them jointly.
Are you able to discuss
some of some of those casesand some of the issues in those cases?
(10:18):
Sure.
So, you know, if you listen to red stategovernors like Abbott in Texas
or DeSantis in Florida, to hear themtell it,
you know, the tech titans in the SanFrancisco area,
you know, the blue Democratic area,are trying to impose
their liberal values
(10:41):
on the people of America, whereverthose people may happen to reside,
which, you know,if you're from a red state,
that that sort of results in a perceptionthat,
you know, the way that they are curatingand moderating content
on their platforms is, like you said,
it's more from a left of center,a liberal perspective.
(11:04):
And they think that they're engagingin viewpoint discrimination
against conservatives in their viewpoints.
And so what the Florida and Texas
legislatures did was to pass laws that
these laws look a little bit differentor very different, I should say, but
they essentially get to the same thing.
They essentially prohibit social media
(11:27):
companies of a certain sizefrom engaging in viewpoint discrimination.
And, you know, it'sdesigned to prevent them
from, you know, doing itagainst conservative points of view.
And so
they have challenged their trade industry
organization, has challenged these laws
in both Texas and in Florida.
(11:50):
That choice. Net.
Choice, Netflix.
But net choice, Right.
And they have claimed that these lawsviolate their free speech.
Right.
To be ableto, you know, curate and moderate content
as they see fit.
And in one sense, they're right.
I mean, if you're aif you're a private actor,
(12:16):
you are not bound by the First Amendment.
You are not bound by free speechrestrictions.
It's only the government with certainlimited exceptions,
that is bound to honorFirst Amendment protections.
If you're a private companylike like Facebook or X,
you can get users to sign in.
(12:37):
They do get you know, you click on that.
Terms and conditions.
If you want to becomea user of the platform
and in those terms and conditions,it essentially says that you agree
that you know, Facebook Xor what have you can moderate content
in their discretionis is they believe warranted.
And so it's really a contractual matterwhen you're talking about private entities
(13:00):
in terms of,
you know, the look and feel of theirplatform, what kind of environment
they want to foster in termsof community of discussion and so forth.
And so, you know, when the
when these laws are saying,okay, you can't discriminate against
people on the basis of that viewpoint,
(13:21):
they're seeing these lawsas their attacks on their ability
to sort of moderate problematic contentlike hate speech, extreme content.
And they're basically saying,no, we are like newspapers
which or television stationswhich the Supreme Court has recognized
that they do have First Amendment rightswhen they exercise editorial judgment
(13:44):
in the types of contentthat they want to publish.
And there's no question that,
you know, these platforms do exerciseeditorial judgments
in terms of what kind of contentthey want their platforms to carry.
But at the same time, they're not likenewspapers and broadcast stations
(14:05):
in the sense that they're not sort of
just delivering their own contentor content that they paid
independent contractorsto create, like freelance reporters.
They are actually a platform
that that is hosting speech of others.
And so you could make the argument like
the red states are arguing,like Texas and Florida are arguing
(14:28):
that these these platformsare more like common carriers,
like a telecommunications, telephone,a wireless telephone company
or an Internet Internet service providerthat just provides a pipe
where, you know,they they don't engage in free speech,
you know, so that any sort of moderationor curating of content is very minimal.
(14:52):
And the free speech rights that are reallyat issue here are those of its users.
So we have these two competing models.
So Florida and Texas are arguingthe common carrier telecommunications
type model.
That choice is arguing,no, we do a lot of curating moderate.
We express ourselves
a lot in the way that we curateand create an environment for expression.
(15:15):
And so the Supreme Courtis going to sort of have to decide
where where that falls,because if they are common carriers,
they probably are subjectto a lot more obligations in terms of
just letting that free flow of content,whether
whether it may be extreme or not,unless it's illegal, of course.
And if they choose the
(15:36):
the newspaper model,then they're going to have the right to do
a lot more of that First Amendmentright to be free of these laws.
And, you know, to me,
you know, companies like Facebook acts,they sort of fall in the middle
between these two polar extremes.
They are somewhat, you know, pipes,
(15:57):
but they are somewhat also newspapersin a certain sense.
And so I think this is going to bea real delicate,
delicate balancing actthat the Supreme Court is going to have to
engage in, into in termsof trying to strike the balance
right balancebetween the free speech rights of these
platformsand the free speech rights of their users.
(16:19):
Well, well, you know, you mentioned
brieflythe dynamics of what free speech is.
And I want to come back to that
because a lot of usjust throw out the concept of free speech
without really understandingsome of the implications of what really is
constitutionally protected free speechand what we may
consider as being free speech,but it's not constitutionally protected.
I do want to come back to that.
(16:40):
But but here we're talking about these netchoice cases
that that to me or by accepting
these cases,the Supreme Court has clearly focused
on the issue that you're mentioning,who's right of free speech.
Is itis it the platforms or is it the user?
(17:02):
And so it'san a potentially explosive issue
that it's going to define
after when this decision comes down,as expected, sometime in 2024,
is going to define who we areand how we communicate ideas and concepts
in this country and elsewherefor the foreseeable future.
But it seems like with something'sgot to give between
(17:25):
the Floridaand Texas statutes and Section 230.
Am I right or wrong?
One of them's got to be unconstitutionalor it's got to be curtailed somehow,
because how has the Supreme Court find itsway to striking a balance on this issue?
Because on the one hand, you got Section230 that says that the server or the
(17:48):
platform social media platformshave the right to moderate content.
And then on the other hand, you've gotFlorida and Texas saying, wait a second,
they should not have the rightto moderate content
when it deals with a point of view,particularly a political point of view.
Well, there is a preemption argument there
that section 230 sort of preempts
(18:10):
these sort of state laws,
but 230 is really designedto relieve the platforms
of civil liabilityin terms of lawsuits and judgments.
When people sue,
when they claimthey've been harmed by certain statements
or posts of users,they also sue the platforms to fore
(18:33):
and usually negligencein allowing that sort of thing to occur.
And that's reallywhat is the heart of 230, was to provide
that sort of immunity from civil liabilityjudgment.
Monetary damages for defamation.
By paying a lot of moneyin these lawsuits.
And so, again,I'm not an expert on two three.
(18:54):
I'd have to go look at it in terms ofif it says anything about
the ability of governments to directlyregulate through criminal sanctions
or finesthe actions of social media providers.
But I doubt there is much in that.
I don't think 230 was designed to do that.
So I'm not sure that there'sa real tension between
(19:15):
230 and states attempting to say, okay,
if you engage in viewpointdiscrimination, for example,
and it's proven in a court of law,
you're going to pay a criminal penaltyor a civil penalty
that effectively amountsto a criminal penalty.
I'm not sure thatthat was the design of 230.
(19:37):
So but I think there are some argumentsbeing made about that, you know, but
I'm not sure that they're very strongones.
Well, it's fascinatingbecause you can kind of thread the needle,
leave two, three alone.
If it only deals with civil liability,that's find it can sit here in this corner
and give immunity from the defamation typedamage lawsuit.
(19:58):
But on the other hand, uphold the Texas
and state legislation
on a constitutional basis.
But but it would still requiresome kind of decision
that it'sthe user of the social media platforms.
Right.
Of free speech, not
the social media platforms of free speechthat Trump's or am I missing?
(20:20):
Well, the 230 issue would dealwith just statutory interpretation.
Right.
So was 230 designedto give social media companies
broad immunity, not just from moneyjudgments by people that sued them,
but also freedom from regulationby government entities.
That, I think is a much more.
(20:41):
Again, I'm not I'd have to do morea lot more work on 230,
but I do not think thatthat was the purpose of 230 to give them
immunity from being regulated by states.
So, you know,I think you do have to get through
that statutoryinterpretation issue first on 230
and then depending on howthat is resolved,
(21:02):
then you'd go into the constitutional freespeech issues to say that, okay, well,
either 230 does allowTexas and Florida to do this.
Then you'd have the free speech issueskicking in.
If it's if you say 230 doesn't a while,then it's a statutory issue
and you don't really even reachthe constitutional free speech issues.
you will. Fascinating.
(21:23):
So and again, you know, you mentioned
the, you know, concepts like
Speakers Corner.
You know, in my mind, it'snot this country,
but in Hyde Park in London,there's Speaker's corner.
So London, England is famous.
You can get on Speakers corner.
People can pretty much say anythingthey want to without fear of repercussion.
(21:45):
Or we talk here about the town square
or maybe once upon a time, years ago,there was litigation over people
who wanted to go in a standon the sidewalk of a shopping center
and speak and shopping center.
Didn't want to have speakers sayingthings that were deemed to be offensive
or interfering with the customers.
(22:05):
But my recollection is that
the Supreme Courtultimately said that that is,
the shopping centers were a public square,effectively
a public square, a public placewhere people could speak subject to time,
manner and place limitations.
Is that correct?
They originally said that,
and then a later case,they pulled back on that substantially.
(22:28):
But but states like California
can give broader protectionsfor free speech if they want.
And there are California laws that saythat, you know, in certain conditions
you can engage in free speechactivities on certain private properties.
So I think from a
First Amendment constitutional law level,
(22:49):
you know, the Supreme Court has retreatedon the view that property
owners have to open up their propertyfor free speech.
But again,
you know, if you're if you're California,you can go beyond that and give greater
free speech protections,as long as it's consistent
with the rights of the property owners.
Right. Right.
Well, then this issueis going to be squarely before the court.
(23:12):
And who has whose
right of free speech are we talking aboutcoming back to this issue again?
Because I know the social media platformsaying it's our right of free speech.
We have the right to moderate content,
including discriminating from politicalpoint of view, it seems to me.
But yet the users are saying,no, it's my right of free speech.
You can't shut me down.
And that seems to place squarely before us
(23:35):
the issue of this, what I call the townsquare public property.
Are these social media platformsthe equivalent of a digital public square?
You know, ultimately,what's the answer to that, do you think?
Well, I'm not sure it'sreal property issues are that helpful
in this environment, because
(23:56):
I but I do think the town squareanalogy is apt because this you know,
this is the social mediaplatforms are the place where,
you know,you get a lot of people coming together
these days to exchange viewpoints.
Unfortunately,not not as much as I would like, because
(24:17):
one unfortunate tendency of the Internetin these social media
platforms is to just engagethe idea of like minded people, you know,
and just sort of communicate with thoseyou think are on your team, so to speak.
So which which to me is a threatto democracy If you're only talking
to people who think like you,you don't grow.
Absolutely.
(24:37):
So I think in in a sense that it islike the Speaker speaker's
corner or the town square in the sensethat, yes, people are converging.
But I think that, you know, it'snot so great of analogy.
Well, you know, you couldyou could look at it on the town square.
You have people going this wayto that side of the town square,
people going onthat's outside of the town square.
(24:59):
They're all talking to each other.
And when they go this way,they're just fighting with each other,
you know, and not really listening. And
so, I mean, I think some of
those analogies are helpfuland some aren't, you know.
What?
Do you have any predictionson on these net choice cases
or what the Supreme Court is going to do?
I think that the Supreme Courtis going to tread very carefully here.
(25:20):
I don't think this is going to besort of the great statement that defines
people's ability to speak on the Internetfor years to come.
I think the if there's if there's any area
where the Supreme Court andthey're not always cautious, believe me.
I mean, they they they've.
They've had some real bloopersin the past.
(25:41):
They are fond of exercising their powerwhen when they think they have five
or six votes to do it.
I think too much.
So but that's another story.
We could we could digress there. But
I think
in this area, free speech tends to be
one of these issues that that you don'tsee the traditional breakdowns
(26:01):
of liberal justiceslining up against conservative justices.
It makes for strange bedfellowsin a lot of cases.
It's a very. American issue, isn't it?
Yeah. Yeah, it is not.
So it's sort of receptive to ideologicaluniformity, you know, in terms of thought.
(26:22):
And so I think the Supreme Courtis going to tread very carefully here
and try to just only decide what it needsto decide in terms of trying to strike
the right balance in these particularcases with these particular statutes.
So if you read the the lower court,the 11th Circuit Court of Appeals opinion
about the Florida law, it's all about,you know, the free speech rights
(26:45):
of the of the platforms, you know,to be able to moderate and curate content.
If you read the the Court of Appealsdecision from the Fifth Circuit and
and Texas, it's all about,censoring the speech of the users you know
and it ultimately reducing freespeech and very little about
not so
much of an emphasis on the free speechrights of the platforms.
(27:08):
So the Supreme Court is going to have to,
as I said before,are going to have to try to figure out
where to go on this.
I think they're going to have to tryto strike a decent balance of interest.
But I think in doing that,
they're only going to sort ofsay what they need to say in this case.
And that's their typical patternin these Internet cases.
They wax eloquent about how this isthe future of free speech and so forth.
(27:30):
But then they tread tread very carefullyand only decide what they need to decide
because they knowand I think this is smart.
They know that they can't envisionhow, you know, if they were to lay out
broad black letter rulesas to what you can
or can't do, they can't envisionall the myriad of circumstances
or problems that that could haveunintended consequences for.
(27:51):
So I wish
I thinkthey're going to proceed cautiously.
I wish they would proceed more cautiouslyin other areas of the law.
But again, that's a
that's a separate subject we know.
The wonderful thingabout about the Supreme Court,
every decisionthey have probably made and we're pushing
250 years is not quite thereyet of experience with the Supreme Court.
(28:13):
And peopleconstantly complain about it as a protest
against it for 250 years,whatever the decision may be.
But the institution has survivedbecause it does work.
Or maybe to say another way,if we took out the Supreme Court
out of American government,what are we going to replace it with?
And so it works
(28:34):
not necessarily well,
and it may take decades to correctto correct errors, but but it's there.
So it's I think it's been referred toas a unique American idea.
Or maybe it was a American ideaby default.
You know, there's all this debate
about whether the foundersreally ever anticipated judicial review.
(28:54):
I think they did understandjudicial review personally,
but I don't think what they understoodwas judicial supremacy.
I think that's a key issue.
Do you have any thoughts on that?
I absolutely agree with youthat the founders would be shocked
at the decisions that the Supreme Courttakes onto itself and decides
very broad matters of important public
(29:17):
policy that they would no doubt saythis is for the people's
representativesto decide, for the legislators to decide.
And the founders, you know, the billmost of these cases
come out of the Bill of Rights,where the Supreme Court is interpreting
these very broadand general provisions called
(29:37):
free speech or free press or free exercise
of religion or due process of lawor equal protection of law.
They're very,very vague and general phrases.
And most of these pronouncementsabout broad public policy
come out of the bill of,you know, these Bill of Rights cases
that have been incorporated to the statesthrough the 14th Amendment.
(30:00):
But that's a technical issue.
The founders, the Bill of Rights, wasn'teven on the radar.
I mean, that was one of the thingsthat almost got the original Constitution
sunk,was the fact that it almost went down
to defeat in the ratification conventionsin the various states.
A couple of those conventions were likejust a couple of different clubs.
(30:20):
We almost did not have this constitu.
And the only reason we haveit is because people like James Madison,
Alexander Hamilton,those that were in favor of the new
constitution, made a gentlemen's promise.
They said, look, you know,we know you're upset
that we didn't have a Bill of Rights.
(30:41):
So, you know, we promise
that if you vote to ratifythis Constitution,
one of the first orders of businessof the new Congress will be to draft
a bill of Rights and send it to the statesas as as amendments to the Constitution.
And that sort of you know,that was enough to get the Constitution
to barely squeak by, barely squeaked by
(31:03):
into approval territory,and it was adopted by the requisite
nine states.
But once, once the new government was upand running,
James Madison had to really sort of cajole
his fellow congressmen to say, Hey,we promise
that we need to work on a Bill of Rights,but they were more busy
trying to get this governmentup and running.
(31:24):
But after, you know, so after,you know, going after him
a few times, they finally said,okay, James, you go and draft it.
And so we did. Yeah.
So this is Madison's language that we'retalking about in the Bill of Rights.
yeah. Yeah.
So he pulled togetherthe existing state constitution.
Since it did have defined Bill of Rights,he pulled together sort of the amendments
(31:45):
that the states had proposedto make to the Bill of Rights.
And so he's looking at theseand he sort of cobbles together,
you know, thisthese 12 amendments to the Constitution.
Only ten made itthrough the ratification process.
But you get the sensethat it was sort of very hurried.
It wasn't really thought out.
It wasn't subject to much debate.
(32:06):
It went through a few committeesand then was sent out.
It just was almost the Bill of Rightswas almost an afterthought
to prevent
a lot of anti-federalists from demandingthat a new constitutional convention
be convened to add more amendments to thebecause they were worried about the size
of the federal government,how powerful it can become.
And so, you know, it's kind of funny.
(32:29):
Today,everyone holds up the Bill of Rights
as this sort of iconic American icon,but it was really in its infancy.
It was just an afterthought.
It was a political expediency measure.
And so
and that allowed all that to saythe founders
weren't thinking about these broadgeneral phrases in the Constitution
(32:50):
and what might happen if the Supreme Court
were to start deciding cases about that.
And they didn't foresee the evolutionof a very sophisticated
economy, society, etc., and how importantsome of these issues might get.
And so when a lot of these major publicpolicy rulings about, you know, campaign
finance, the ability to spend moneyin connection with elections,
(33:14):
abortion, same sex
rights, I mean, gun rights, you name it,I mean,
that have a profound,everyday influence on Americans.
They would be shocked to see whatthat Bill of Rights
that they had considered anafterthought had it had the sort of power
it had given to unelectedjudges is how they viewed them.
(33:36):
They wanted to stick to their knittingin terms of deciding specific and narrow
legal disputes and have the government runby the representatives
of the people in a democracy,the president, the Congress, Congress
was designedto be the main engine of democracy.
The Supreme Court was, or any courtwas only supposed to get involved
any lower federal court,
(33:57):
if there was a case or controversythat need to be decided.
And it was the view that unelected judgeswho weren't accountable to the people
should just be,you know, doing their role as a empire
umpire or a referee on wiggle disputes.
But for them to see what that has morphedinto today,
this sort of notion of the Supreme Courtthat is supreme in matters
(34:20):
of constitutional interpretation,and what once they issue a ruling
that everyone has to listen to them,
whether it's Congress,whether it's the president,
whether they had a chance to arguetheir case in front of a court about,
you know, what
that provision should mean, the founderswould would just be shocked at this.
JamesMadison would be doing backflips probably.
yeah.
(34:41):
Well, Thomas Jefferson in particularwould be rolling in his grave
because he he in particular,
even back then, were soundingthe alarm bells
about how these vague provisionsof the Constitution could allow courts
who weren't accountable to the peopleto essentially dictate
very important issues of public policyin a democracy that is by definition
(35:05):
supposed to be a government of the people,by the people, and not by five unelected
lawyers that have been appointedto the Supreme Court
or any federal court for that matter.
It's almost like
who was a Plato in his philosopherkings, right?
It's almost like we've anointedthe five at least five justices
on the Supreme Court as our philosopherkings who determine issues of.
(35:28):
The Platonic guardians.
The platonic guardians.
I mean.
You see that
you see that phrase appearingin a lot of vigorous dissents by justices.
Who do we thinkwe are, a council of platonic guardians?
The only problem is they only use thatwhen it's convenient, you know,
and when they're the onesthat are sort of issuing these problems,
then they're being attacked for that,you know,
So it just sort of goes that, well.
(35:49):
How do we get to this?
You know, the foundersdidn't see it this way.
They didn't write the Constitutionwith the intent
of making the Supreme Courtour platonic guardians.
But yet it happened.
The reason why did that happened?
Is it because of default?
Because Congress wasn't
keeping up, unable politically to address
(36:10):
changes in the society,or because we couldn't
pass the constitutional amendmentsbecause of the structure that
the founders gave us.
Any any thoughts on why we got to.
yeah. I mean, I've written about this.
I've had some editorials in The New Yorker
or op ed piecesin The New York Times about it.
But there's a couple of things.
Number one, the sort of it's notyou can't say this was a mistake
(36:35):
because they just didn't foresee this,but they just didn't foresee
the rise of the very rapid rise.
After George Washington
stepped down from his presidency,George Washington hated Partizanship.
He thought it was damaging to the country.
They did choose to argue he was wrong. So.
I mean, he's right today.
(36:55):
I'd argue he's very right. He's right.
But they did not foresee how
once he stepped downand there was a power vacuum,
all of a sudden you had the rise of thesepolarized national political parties
that madeit made a lot of the institutions that the
the the founderscreated in the Constitution.
(37:16):
It made it harder for them to operatein the way that they had intended.
Congress being they they intended Congressto be the engine of democracy to to,
you know, because they were the closestto the people.
You know, the house is in part ofthe Senate, is elected every two years.
So, you know, it'sthe people they have the.
So-Called people's house on the house.
But with this, you know,this blue red divide that has occurred,
(37:39):
they can't get anything done.
So Congress has become the weakestof our institutions Of the three
main institutions, the executive,the legislative and the judicial.
And for that reason, now you see allthe power transferring to the executive.
You see all the power transfer,
I shouldn't say allbut a substantial power transferring to
(38:00):
the judiciary and the Supreme Court.
And so that's why you seethe kind of battles that we just witnessed
over the last, you know, fiveor six years over the White House.
That's why when there is a seat openon the Supreme Court,
it becomes a political circus in terms ofwho is nominated and who gets confirmed.
(38:20):
I mean, it's just all outpolitical warfare.
It's because the founders didn't see that,
you know, the main institutionthat it thought was going to drive
American democracyhas become very weakened and all that
power has shifted to institutionsthat weren't designed to do it.
And so that's why we have thesethese battles over
(38:40):
or the over the executive branch,over the judicial branch.
Well,that raises the interesting question.
So we have these
unelected individuals
sitting on the Supreme Court.
So I guess
a lot of people would disagree with this,but at least in the political theory,
is the most undemocraticbranch of government.
(39:03):
I think the argument is that the Houseof Representatives is the most Democratic
the Senate, which thethe founders originally envisioned it,
were to be appointed by the statelegislatures, legislatures And
and then every four years, of course,the president would be elected indirectly.
But yet the ones who were never
elected were the Supreme Court justices.
(39:25):
The question I have for you, though,if more and more power is going to these
unelected justices, what does that mean
to our Republican democracy?
I mean,it means that we're less democratic
and we're subject to sort of the shiftsin the political philosophy
of a majority of justices thatthat whole power on the Supreme Court.
(39:50):
So for many years, you know,the court was dominated
by Democratic appointeesthat tend to devote more liberally.
And that's when you had the Warren Court
that had, you know, had a vast expansionin protections
for civil rightsand civil liberties and criminal rights
and you sort of saw the the Burger Courtbeing a little bit more centrist
(40:12):
and then the Rehnquist court becomingmore conservative and wanting to sort of
cut back onsome of the more liberal extensions of the
of the Warren Court. And
and now,you know, of course, with President Trump,
unbelievably getting three appointmentsin a one term presidency.
(40:33):
That almost unheard of. Extremely rare.
He was able to tilt the balance.
I think George Washingtongot away with it.
I think he had no one to replace.
Right. Right.
But, I mean,
so he has pushed the Supreme Court
to a very conservative position.
And so now,
(40:55):
you know, ourour fundamental law depends on, you know,
which of presidents have the happenstance
to get a chanceto fill a vacancy on the Supreme Court.
And so our fundamental law sort of shiftsby virtue
of that happenstance, which is notwhat constitutional law should be.
(41:17):
Our fundamental law should be stable,it should be predictable.
People should be ableto order their lives around it.
And so it's not working out,
as the founders,I think, would have liked to have seen
it. And,
you know, and another part of the problem
is that the Supreme Court itselfhas been a lot of the problem.
(41:39):
They, you know, for many years,
you know, JusticeFelix Frankfurter, for example,
being a pragmatist, he would ahe would advocate judicial restraint.
We have to recognize our role here,
too, to sort of interpret the laws
that's put in front of us and decideno more than is necessary.
We really don't have the mandateto do any more than that.
(42:00):
While the Supreme Court has just done awaywith that, they are, as I said before,
they are just more than happyto sort of take on these these power
playing roles and
and, you know, frankly,
a lot of times these senatorsfrom whatever party that are appointing
them and are behind them,and that's why they put them on there,
(42:20):
they expect them to do that.
And so
the founders role,I think, of what a judge
should be in our societyhas has been radically altered.
And I think it'sa real part of the problem.
Well, I guess another way to
say that is power has a tendencyto grow, particularly if there's a vacuum.
It seems to me.
And I think what you're saying,if I understand
(42:41):
you correctly, is thatthere has been a vacuum created over
several hundred yearsbecause of Congress inability to act.
And that vacuum has been filledby the Supreme Court, and it is continuing
to be filled and will continue to grow,I think is what you're saying.
Well, yeah,but it's really a modern phenomena.
So, I mean, you know,the Supreme Court has been political for,
(43:04):
you know, in the in the 1800s, not so much
early 1900sbecame somewhat political until FDR
said, stop it or I'm going to get Congressto pack the court.
And so you get this new deal legislationthrough
and things quieted down for a little bit.
But then, you know, it was reallywith Brown versus Board of Education
(43:28):
where and I understand why this happened,because when the Supreme Court
in a unanimous decision decided nine zero,that that the southern states
mainly had to disagree,regulate their public school systems,
and the southern states were saying,you know, who are you?
You know,nine lawyers in in Washington, D.C.
to be telling us what we can dowith our public education system.
(43:51):
They there was massive
defiance in the southern states.
I remember as a young lad
sitting in the back seatas my father was driving us
and seeing these big billboardsthat said Impeach Earl Warren.
And they were all over the placeonce upon a time.
Yeah, yeah.
That was it was very controversial.
And so a few yearsafter Brown versus Board of Education,
(44:14):
a case came back to the Supreme Courtabout whether the state
of Arkansas and certain other stateshad to take certain remedial measures to
it. COOPER Versus Erin, is the decision
and the Supreme Court by that time
was sick of being ignored.
And so they signed a each justicesigned this opinion, which is very rare
(44:37):
for every justice, put their name onan opinion that that never happens.
So they were obviously tryingto make a statement here.
But unfortunately,what I've from my perspective,
maybe fortunately from the perspectivethey think judicial supremacy is a
good thing.
The court sort of
reached back in timeto Marbury versus Madison and took a line
(44:59):
out of Marbury versus Madisonthat I think they took out of context.
And they basically said, you know, we saidthen that we are supreme in matters
of constitutional interpretationand we mean it.
We are once we speak,everyone has to listen.
You know, whether it's the president,Congress, state, state governments.
I understand why they did it,
(45:20):
because they wereyou know, they were under assault.
But I think that
after that, it sort of
took on a life of its own, you know, thisthis notion of judicial supremacy.
And they just sort of evolved itfrom there.
And the people of
the most American people,this is an arcane legal issue.
They just sort of don't even focus on itand don't even know it's happening.
(45:43):
So you can you can say that
the Supreme Court sort of
accreted power to itselfwith no one to really oppose it
other than presidents once in a whilevoicing objections to the amount of power
that the Supreme Court has taken untoitself and Congress has become weakened.
And they're almost glad to seethe Supreme Court take on these concepts.
(46:06):
It takes. It offtheir controversial political.
Plate.
All they're care about is,you know, getting money to, you know,
run their next election to hopefullysave their jobs in Washington, D.C.
And they don't want anything controversialthat could potentially
get them voted out of office.
And so we have a lot of structural issuesin our democracy that are problematic
(46:29):
that, you know, it's not clearhow they're going to get fixed,
but we're going to have to muddle throughit until they are fixed
at the same time.
So, you know, I'm notI don't want to be a doomsayer.
I mean, I do think that
the founders, particularly JamesMadison and Company, were
were very sort of brilliant in the waythat they structured our government
(46:50):
in terms of separating power and checksand balances at the federal level.
And then you have vertical separationof power
between state, local andfederal government, where each are sort of
jealously guarding their.
And so I do think that that that sort of
reliance on the self-interestof politicians and governmental entities
(47:12):
and so forth createsthis sort of equilibrium
and stability that is allowedour constitutional system to survive.
Now, for over, you know, 200.
30 years, I think is the oldestconstitution still extant, isn't it,
except except for the Britishconstitution, which is unwritten?
Well, I mean,it just depends on how you describe it.
I mean, the state constitutionswere the first written constitutions in
(47:35):
you know, a lot of them have been amendedand replaced and so forth.
But certainly from a national government'sgovernance perspective,
I mean, our Constitution has endured witha limited number of amendments, probably
more than for far longer than any otherwritten constitution in the world.
In terms of reform,the of the Supreme Court.
I know it's been suggestedfrom time to time
(47:58):
I seem to have a vague memorythat Teddy Roosevelt,
when he was president, was proposing
a reform that would allow controversialor any decision,
really the Supreme Court on certainissues, probably constitutional issues,
could be reviewedby a national plebiscite.
And if you had a two thirdsor three quarters of the people vote
(48:19):
against a certain opinion, thenthe Supreme Court would would be reversed.
So you actually restore the people back
as the ultimate determinerof some of the Supreme Court decisions.
Is there
any discussion or any serious debate
about trying to recover
some of this powerthat the Supreme Court has
(48:41):
absorbed in the vacuum?
I mean, you see proposals being floatedand and I'm sure you could find
some draft billsthat have been introduced in Congress to
create a system of national referendums,
so forth on, you know, that address
that not only just Supreme Court cases,but other constitutional issues.
(49:05):
I mean, it happenedand it happens here in California.
I mean, same sex marriage.
You remember when the CaliforniaSupreme Court decided in a
4 to 3 decision that
the equal protection clauseof the California Constitution demanded
that the state recognizesame sex marriages in the same way
as traditional marriages.
(49:25):
And in Prop eight,the people in the referendum reversed
the California Supreme Courtand then, of course, the federal courts.
After the people had reversedthe California
Supreme Court, the federal courtsreversed the people of California.
But but, you know, that was justan example of how that works.
And so there have been a lot of proposals
(49:45):
for, that sort of thing,at the national level.
But again, it's just hard to getanything done these days, much less a.
Major change like that.
And yeah, well, California obviously as a
is a laboratory for the nationthat one can work.
Some can arguemaybe that no one wants to emulate
California governmentbecause it's so dysfunctional.
(50:06):
Others may say Californiagovernment is very functional.
So that's another debate for probably forfor another day.
But yetyou've got the laboratory experience
and that's been around for 100 yearsor so.
I think during the earlyor early progressive era of the 1900s,
I think is when that law came into placein California.
I'm not sure if I've got that correct.But somewhere in that era of.
(50:28):
the the national initiative,I mean, the California initiative.
Yes. Yes. Yeah.I think somewhere around that.
Because I'm so it's alsoit's been around for a long time
or but but
let's say the California modelwere proposed again
effectively it is now a proposedconstitutional amendment,
United States constitutional amendment.
So so so that there could be a referendumon decisions that are made.
(50:54):
To amend the council.
Or to reject.
It's always so you have an amendment
to the Constitution to restoreto the people the ability to review
under some format or formula decisionsmade by the Supreme Court.
So you can then shift
some power back from the Supreme Court,back to the people directly.
Would that be a good idea or a bad idea?
I personally think it something alongthose lines would be a good idea.
(51:18):
Canada has such a mechanism.
So in Canada,if this Canadian Supreme Court
interpreting their constitutionalBill of Rights
makes it a certainruling that a province disagrees with,
now the province canhold a vote to essentially
(51:38):
not comply with the
Supreme Court's rulingif it disagrees with it.
But then they have to every five yearssort of renew that vote.
So it comes up every five years.
But if they keep every five years votingto not comply with the Supreme Court
ruling, it's built into their Constitutionthat they don't don't have it.
So it is a they don't have to.
(51:59):
So it is a political checkon their Supreme Court.
And I think that I don't you know,it could work a lot of different ways.
But I definitely do think that we needmore of a Democratic check
on the Supreme Court because it justis pretty much nonexistent today.
I mean, there is somethingin the terms of the president
(52:20):
being able to appoint a vacancy,but that depends on happenstance.
It's a very ityou know, in terms of sort of
popular views
being incorporated by a justice that gets
put on the Supreme Court.
It's a it's a real lag period,you know, in of for that
(52:40):
that sort of thing to take place.
So it's a very ineffective politicalcheck on the Supreme Court.
And I do think we needwe need to do something in the future.
Professor McDonald, this has beena wonderful discussion today.
I want to thank youfrom the bottom of my heart.
I look forward to having you backfor part two.
Professor Barry McDonald,
(53:01):
thank you for listeningand watching the Power Score
and Seven Project, a production ofthe New Majority Foundation.
My name is
Roger Clark, your host for thisedition of The Force Gordon seven Project,
a production of the New MajorityFoundation.
Our topic today is Free Speechand the Internet.
2024 may be a watershed yearfor this issue,
and there's a lot of people who believethat the Supreme Court
has its crosshairson free speech in the Internet
(00:43):
because they've accepted by last count,four major cases
that are going to give significantdefinition to the concept
of free speech in the Internet worldthat we live in today.
There are many who believethat the answers
that the Supreme Court gives to this issue
will determine whether or not we continue
to have a successful democracy or not.
(01:07):
We are very fortunateto have as our guests
to discuss these issuesand what's going to happen in 2024.
Professor Barry McDonald
from the Pepperdine
University Caruso School of Law.
ProfessorMcDonald is an illustrious professor.
I don't mean to embarrass you,but you've got a tremendous CV resumé
(01:29):
upon graduationfrom Northwestern Law School.
Once upon a time, you clerked for ChiefJustice William Rehnquist.
You became a professor without eliminatinga lot of stuff in between.
But you've been a professor at Pepperdinefor a good close to a quarter century, I.
Believe, now 23 years.
A prolific writer.
(01:51):
You're a scholar at Pepperdine
on constitutional law with a particularemphasis on First Amendment issues.
You have appeared on CBS, Fox News,a variety of cable
and network television and print media
such as the Washington Postand The New York Times and others as well.
We're very fortunateto have you with us, Professor McDonald.
(02:12):
Well, thank you, Roger, for having me.
So this is a lot to unwind.
We live in a very complicated time.
A lot of issues that are new and novelthat we're all wrestling with.
There are many of us, including me,who feel like we live
in the Dodge City of Communicationsand because of
because of the invention of the Internetand the creation of all these social media
(02:34):
websites and Internet service providersand so forth and so on.
So it's a lot to unravel. Tell us,
where do we start unraveling this?
I think you start unraveling it.
You call it dodge City, the Wild West.
It sort of is.
I mean, the Internet is relatively newand in modern
and it can be a cacophony of voices.
(03:00):
But I think what you're seeingis sort of a evolution
of the same model that you hadwhen you had traditional broadcast,
which is certain players,social media companies,
you know, like Facebook, Instagram,YouTube,
TikTok, X, you know, funneling the vast
majority of of those communicationsbetween people.
(03:22):
And so
they are sort of becoming the gatekeeperin a lot of ways
to substantial stream of communicationin this in this modern society.
So I think that that focusing onwhat's going on in those platforms
does help us to sort of figure outwhat what the issues are
(03:42):
and what we need tobe dealing with or paradigm.
As I understand it.
And pleaselet me know where I'm going to drift
drift off center on thisbecause I know I'm going to drift off
center on some of these points.
But since 1996,
I think was the CommunicationsDecency Act of 1996,
(04:03):
which we've all heard about thisinfamous or famous
Section 230 of that act,
which there has been so much discussionabout it over the years,
but at least since that act,and that's been almost 30 years ago now,
that the assumption is that
the social media sites these Internet
(04:24):
service providers basically function
more like a traditional newspaper
than they do a commentator.
But with exceptions, because with Section
230, they're deemed not to be a publisheror a speaker.
So they have a immunity clause.
But then there'sanother section of the 230
that says they can moderate content,they can delete posts
(04:48):
basically for any reasonthey want to subject to an undefined term
of good faith,
which which again, to me strikes mea little bit that that Wild West analogy
I was talking about, which kind of putsin to my sense into issue is
whoseright of free speech are we talking about?
Because I know
that the social media platformwill claim it's our right of free speech.
(05:13):
And there are a lot of people out therewho say the ones who are using
these social media platforms are saying,no, it's our right of free speech.
So where do we go?Well, you're quite right.
There's twowhen you're talking about free speech on
social media sites, you'retalking about two layers of expression.
You're talking about the speechthat occurs by the users of the site.
(05:34):
And you're also talking about the speechor expressive activities
of the site itself in terms of curatingand moderating the content.
And in terms of Section 230that was adopted on the that was
when the Internet was just getting goingand it was adopted on the theory that
we need to
provide some breathing spacesfor these new Internet companies
(05:56):
who are hosting content to be ableto do that without fear of liability
from harmful content or illegal content
that their users might host.
And, you know, and I think it wasit was good
and the idea was good in its inception.
But I think
(06:17):
once you get going with something,it becomes hard to change.
And I think we do need to revisit Sectiontwo three because now we have
these bimbos, you know, of of the Internetlike Facebook meta.
Now I guess
X, you know, Google, YouTube.
I don't I just don't think I don't thinkit's striking the right balance now.
I don't think those companies needthat sort of protection from immunity.
(06:40):
And in fact, I think it probably doesmore harm than good
in that they can be more lax in terms of,you know, harmful content
that might appear on on on their platformsand and not doing anything about it
or they should have done something,but maybe they didn't. And
so I think I think we you know,we need to revisit section 230
(07:03):
and it balance trying to strikebetween these
these business entities and
you know,
generating that free flow of informationon the Internet that we're looking for.
Well, let me let me just posea hypothetical for just a minute.
And let's assume for a minutethat you become the communications czar
(07:24):
of the United States and you havethe ability to, with the stroke of a pen,
revisit section to 30 and modify
it to create a better balance.
In today's reality.
What would you do?
I mean, I might remove immunity
altogether from sites, companiesthat have,
(07:46):
you know, a certain net worth,you know, And
I think those kind of companies,you know, they're lawyered up to the max.
I mean, can sort of adoptthe sort of policies that they need
to make sure that their platforms
are being used responsiblyand I think the legal doctrines in place
(08:08):
that would shield companies like them
other than Section two under Section 230,if they're making good faith efforts
to make sure that,you know, their content,
their their platforms aren't misused,
you know, would probably do the trick.
The existing doctrines,the existing immunities that are out there
in the in state law and so forth.
(08:30):
I mean, I need to I would need to sit downand really take a look at this.
I'm not, you know, an expert on Section230 by any means.
That's more of a communicationslaw sort of issue
than a constitutional free speech issue.
But that's my sort of offthe top of my head thinking about that.
Well, it seems seems thatthe biggest thing that gets gets people
(08:53):
agitatedis is the political content of, quote,
the so-called moderation that goes on withsocial media sites and and
and that'swhat gets people really angry or
on the other side, maybe pleased.
It depends upon what your political stripemay or may not be.
(09:16):
And there seems and the perceptionin any way
is that the moderationfrom the Facebooks of the world and,
you know, X or which formerly Twitterand all of this sort of stuff is is is if
not in favor of the right of centerpoint of view.
And whether that's right or wrong,
(09:36):
that is certainly is a perception.
And I think that a couple of the casesthat are pending before the Supreme Court
are the state of Texasin the states of Florida, passed laws
that were intended
to limit the abilityof the social media platforms to moderate
(09:57):
points of view,particularly political points of view.
And I think those are the there's
one caseout of Florida, one case out of Texas.
They've had different journeys
in the lower courts,but they've now both been joined together.
I think the Supreme Court has agreed totake those cases on and hear them jointly.
Are you able to discuss
some of some of those casesand some of the issues in those cases?
(10:18):
Sure.
So, you know, if you listen to red stategovernors like Abbott in Texas
or DeSantis in Florida, to hear themtell it,
you know, the tech titans in the SanFrancisco area,
you know, the blue Democratic area,are trying to impose
their liberal values
(10:41):
on the people of America, whereverthose people may happen to reside,
which, you know,if you're from a red state,
that that sort of results in a perceptionthat,
you know, the way that they are curatingand moderating content
on their platforms is, like you said,
it's more from a left of center,a liberal perspective.
(11:04):
And they think that they're engagingin viewpoint discrimination
against conservatives in their viewpoints.
And so what the Florida and Texas
legislatures did was to pass laws that
these laws look a little bit differentor very different, I should say, but
they essentially get to the same thing.
They essentially prohibit social media
(11:27):
companies of a certain sizefrom engaging in viewpoint discrimination.
And, you know, it'sdesigned to prevent them
from, you know, doing itagainst conservative points of view.
And so
they have challenged their trade industry
organization, has challenged these laws
in both Texas and in Florida.
(11:50):
That choice. Net.
Choice, Netflix.
But net choice, Right.
And they have claimed that these lawsviolate their free speech.
Right.
To be ableto, you know, curate and moderate content
as they see fit.
And in one sense, they're right.
I mean, if you're aif you're a private actor,
(12:16):
you are not bound by the First Amendment.
You are not bound by free speechrestrictions.
It's only the government with certainlimited exceptions,
that is bound to honorFirst Amendment protections.
If you're a private companylike like Facebook or X,
you can get users to sign in.
(12:37):
They do get you know, you click on that.
Terms and conditions.
If you want to becomea user of the platform
and in those terms and conditions,it essentially says that you agree
that you know, Facebook Xor what have you can moderate content
in their discretionis is they believe warranted.
And so it's really a contractual matterwhen you're talking about private entities
(13:00):
in terms of,
you know, the look and feel of theirplatform, what kind of environment
they want to foster in termsof community of discussion and so forth.
And so, you know, when the
when these laws are saying,okay, you can't discriminate against
people on the basis of that viewpoint,
(13:21):
they're seeing these lawsas their attacks on their ability
to sort of moderate problematic contentlike hate speech, extreme content.
And they're basically saying,no, we are like newspapers
which or television stationswhich the Supreme Court has recognized
that they do have First Amendment rightswhen they exercise editorial judgment
(13:44):
in the types of contentthat they want to publish.
And there's no question that,
you know, these platforms do exerciseeditorial judgments
in terms of what kind of contentthey want their platforms to carry.
But at the same time, they're not likenewspapers and broadcast stations
(14:05):
in the sense that they're not sort of
just delivering their own contentor content that they paid
independent contractorsto create, like freelance reporters.
They are actually a platform
that that is hosting speech of others.
And so you could make the argument like
the red states are arguing,like Texas and Florida are arguing
(14:28):
that these these platformsare more like common carriers,
like a telecommunications, telephone,a wireless telephone company
or an Internet Internet service providerthat just provides a pipe
where, you know,they they don't engage in free speech,
you know, so that any sort of moderationor curating of content is very minimal.
(14:52):
And the free speech rights that are reallyat issue here are those of its users.
So we have these two competing models.
So Florida and Texas are arguingthe common carrier telecommunications
type model.
That choice is arguing,no, we do a lot of curating moderate.
We express ourselves
a lot in the way that we curateand create an environment for expression.
(15:15):
And so the Supreme Courtis going to sort of have to decide
where where that falls,because if they are common carriers,
they probably are subjectto a lot more obligations in terms of
just letting that free flow of content,whether
whether it may be extreme or not,unless it's illegal, of course.
And if they choose the
(15:36):
the newspaper model,then they're going to have the right to do
a lot more of that First Amendmentright to be free of these laws.
And, you know, to me,
you know, companies like Facebook acts,they sort of fall in the middle
between these two polar extremes.
They are somewhat, you know, pipes,
(15:57):
but they are somewhat also newspapersin a certain sense.
And so I think this is going to bea real delicate,
delicate balancing actthat the Supreme Court is going to have to
engage in, into in termsof trying to strike the balance
right balancebetween the free speech rights of these
platformsand the free speech rights of their users.
(16:19):
Well, well, you know, you mentioned
brieflythe dynamics of what free speech is.
And I want to come back to that
because a lot of usjust throw out the concept of free speech
without really understandingsome of the implications of what really is
constitutionally protected free speechand what we may
consider as being free speech,but it's not constitutionally protected.
I do want to come back to that.
(16:40):
But but here we're talking about these netchoice cases
that that to me or by accepting
these cases,the Supreme Court has clearly focused
on the issue that you're mentioning,who's right of free speech.
Is itis it the platforms or is it the user?
(17:02):
And so it'san a potentially explosive issue
that it's going to define
after when this decision comes down,as expected, sometime in 2024,
is going to define who we areand how we communicate ideas and concepts
in this country and elsewherefor the foreseeable future.
But it seems like with something'sgot to give between
(17:25):
the Floridaand Texas statutes and Section 230.
Am I right or wrong?
One of them's got to be unconstitutionalor it's got to be curtailed somehow,
because how has the Supreme Court find itsway to striking a balance on this issue?
Because on the one hand, you got Section230 that says that the server or the
(17:48):
platform social media platformshave the right to moderate content.
And then on the other hand, you've gotFlorida and Texas saying, wait a second,
they should not have the rightto moderate content
when it deals with a point of view,particularly a political point of view.
Well, there is a preemption argument there
that section 230 sort of preempts
(18:10):
these sort of state laws,
but 230 is really designedto relieve the platforms
of civil liabilityin terms of lawsuits and judgments.
When people sue,
when they claimthey've been harmed by certain statements
or posts of users,they also sue the platforms to fore
(18:33):
and usually negligencein allowing that sort of thing to occur.
And that's reallywhat is the heart of 230, was to provide
that sort of immunity from civil liabilityjudgment.
Monetary damages for defamation.
By paying a lot of moneyin these lawsuits.
And so, again,I'm not an expert on two three.
(18:54):
I'd have to go look at it in terms ofif it says anything about
the ability of governments to directlyregulate through criminal sanctions
or finesthe actions of social media providers.
But I doubt there is much in that.
I don't think 230 was designed to do that.
So I'm not sure that there'sa real tension between
(19:15):
230 and states attempting to say, okay,
if you engage in viewpointdiscrimination, for example,
and it's proven in a court of law,
you're going to pay a criminal penaltyor a civil penalty
that effectively amountsto a criminal penalty.
I'm not sure thatthat was the design of 230.
(19:37):
So but I think there are some argumentsbeing made about that, you know, but
I'm not sure that they're very strongones.
Well, it's fascinatingbecause you can kind of thread the needle,
leave two, three alone.
If it only deals with civil liability,that's find it can sit here in this corner
and give immunity from the defamation typedamage lawsuit.
(19:58):
But on the other hand, uphold the Texas
and state legislation
on a constitutional basis.
But but it would still requiresome kind of decision
that it'sthe user of the social media platforms.
Right.
Of free speech, not
the social media platforms of free speechthat Trump's or am I missing?
(20:20):
Well, the 230 issue would dealwith just statutory interpretation.
Right.
So was 230 designedto give social media companies
broad immunity, not just from moneyjudgments by people that sued them,
but also freedom from regulationby government entities.
That, I think is a much more.
(20:41):
Again, I'm not I'd have to do morea lot more work on 230,
but I do not think thatthat was the purpose of 230 to give them
immunity from being regulated by states.
So, you know,I think you do have to get through
that statutoryinterpretation issue first on 230
and then depending on howthat is resolved,
(21:02):
then you'd go into the constitutional freespeech issues to say that, okay, well,
either 230 does allowTexas and Florida to do this.
Then you'd have the free speech issueskicking in.
If it's if you say 230 doesn't a while,then it's a statutory issue
and you don't really even reachthe constitutional free speech issues.
you will. Fascinating.
(21:23):
So and again, you know, you mentioned
the, you know, concepts like
Speakers Corner.
You know, in my mind, it'snot this country,
but in Hyde Park in London,there's Speaker's corner.
So London, England is famous.
You can get on Speakers corner.
People can pretty much say anythingthey want to without fear of repercussion.
(21:45):
Or we talk here about the town square
or maybe once upon a time, years ago,there was litigation over people
who wanted to go in a standon the sidewalk of a shopping center
and speak and shopping center.
Didn't want to have speakers sayingthings that were deemed to be offensive
or interfering with the customers.
(22:05):
But my recollection is that
the Supreme Courtultimately said that that is,
the shopping centers were a public square,effectively
a public square, a public placewhere people could speak subject to time,
manner and place limitations.
Is that correct?
They originally said that,
and then a later case,they pulled back on that substantially.
(22:28):
But but states like California
can give broader protectionsfor free speech if they want.
And there are California laws that saythat, you know, in certain conditions
you can engage in free speechactivities on certain private properties.
So I think from a
First Amendment constitutional law level,
(22:49):
you know, the Supreme Court has retreatedon the view that property
owners have to open up their propertyfor free speech.
But again,
you know, if you're if you're California,you can go beyond that and give greater
free speech protections,as long as it's consistent
with the rights of the property owners.
Right. Right.
Well, then this issueis going to be squarely before the court.
(23:12):
And who has whose
right of free speech are we talking aboutcoming back to this issue again?
Because I know the social media platformsaying it's our right of free speech.
We have the right to moderate content,
including discriminating from politicalpoint of view, it seems to me.
But yet the users are saying,no, it's my right of free speech.
You can't shut me down.
And that seems to place squarely before us
(23:35):
the issue of this, what I call the townsquare public property.
Are these social media platformsthe equivalent of a digital public square?
You know, ultimately,what's the answer to that, do you think?
Well, I'm not sure it'sreal property issues are that helpful
in this environment, because
(23:56):
I but I do think the town squareanalogy is apt because this you know,
this is the social mediaplatforms are the place where,
you know,you get a lot of people coming together
these days to exchange viewpoints.
Unfortunately,not not as much as I would like, because
(24:17):
one unfortunate tendency of the Internetin these social media
platforms is to just engagethe idea of like minded people, you know,
and just sort of communicate with thoseyou think are on your team, so to speak.
So which which to me is a threatto democracy If you're only talking
to people who think like you,you don't grow.
Absolutely.
(24:37):
So I think in in a sense that it islike the Speaker speaker's
corner or the town square in the sensethat, yes, people are converging.
But I think that, you know, it'snot so great of analogy.
Well, you know, you couldyou could look at it on the town square.
You have people going this wayto that side of the town square,
people going onthat's outside of the town square.
(24:59):
They're all talking to each other.
And when they go this way,they're just fighting with each other,
you know, and not really listening. And
so, I mean, I think some of
those analogies are helpfuland some aren't, you know.
What?
Do you have any predictionson on these net choice cases
or what the Supreme Court is going to do?
I think that the Supreme Courtis going to tread very carefully here.
(25:20):
I don't think this is going to besort of the great statement that defines
people's ability to speak on the Internetfor years to come.
I think the if there's if there's any area
where the Supreme Court andthey're not always cautious, believe me.
I mean, they they they've.
They've had some real bloopersin the past.
(25:41):
They are fond of exercising their powerwhen when they think they have five
or six votes to do it.
I think too much.
So but that's another story.
We could we could digress there. But
I think
in this area, free speech tends to be
one of these issues that that you don'tsee the traditional breakdowns
(26:01):
of liberal justiceslining up against conservative justices.
It makes for strange bedfellowsin a lot of cases.
It's a very. American issue, isn't it?
Yeah. Yeah, it is not.
So it's sort of receptive to ideologicaluniformity, you know, in terms of thought.
(26:22):
And so I think the Supreme Courtis going to tread very carefully here
and try to just only decide what it needsto decide in terms of trying to strike
the right balance in these particularcases with these particular statutes.
So if you read the the lower court,the 11th Circuit Court of Appeals opinion
about the Florida law, it's all about,you know, the free speech rights
(26:45):
of the of the platforms, you know,to be able to moderate and curate content.
If you read the the Court of Appealsdecision from the Fifth Circuit and
and Texas, it's all about,censoring the speech of the users you know
and it ultimately reducing freespeech and very little about
not so
much of an emphasis on the free speechrights of the platforms.
(27:08):
So the Supreme Court is going to have to,
as I said before,are going to have to try to figure out
where to go on this.
I think they're going to have to tryto strike a decent balance of interest.
But I think in doing that,
they're only going to sort ofsay what they need to say in this case.
And that's their typical patternin these Internet cases.
They wax eloquent about how this isthe future of free speech and so forth.
(27:30):
But then they tread tread very carefullyand only decide what they need to decide
because they knowand I think this is smart.
They know that they can't envisionhow, you know, if they were to lay out
broad black letter rulesas to what you can
or can't do, they can't envisionall the myriad of circumstances
or problems that that could haveunintended consequences for.
(27:51):
So I wish
I thinkthey're going to proceed cautiously.
I wish they would proceed more cautiouslyin other areas of the law.
But again, that's a
that's a separate subject we know.
The wonderful thingabout about the Supreme Court,
every decisionthey have probably made and we're pushing
250 years is not quite thereyet of experience with the Supreme Court.
(28:13):
And peopleconstantly complain about it as a protest
against it for 250 years,whatever the decision may be.
But the institution has survivedbecause it does work.
Or maybe to say another way,if we took out the Supreme Court
out of American government,what are we going to replace it with?
And so it works
(28:34):
not necessarily well,
and it may take decades to correctto correct errors, but but it's there.
So it's I think it's been referred toas a unique American idea.
Or maybe it was a American ideaby default.
You know, there's all this debate
about whether the foundersreally ever anticipated judicial review.
(28:54):
I think they did understandjudicial review personally,
but I don't think what they understoodwas judicial supremacy.
I think that's a key issue.
Do you have any thoughts on that?
I absolutely agree with youthat the founders would be shocked
at the decisions that the Supreme Courttakes onto itself and decides
very broad matters of important public
(29:17):
policy that they would no doubt saythis is for the people's
representativesto decide, for the legislators to decide.
And the founders, you know, the billmost of these cases
come out of the Bill of Rights,where the Supreme Court is interpreting
these very broadand general provisions called
(29:37):
free speech or free press or free exercise
of religion or due process of lawor equal protection of law.
They're very,very vague and general phrases.
And most of these pronouncementsabout broad public policy
come out of the bill of,you know, these Bill of Rights cases
that have been incorporated to the statesthrough the 14th Amendment.
(30:00):
But that's a technical issue.
The founders, the Bill of Rights, wasn'teven on the radar.
I mean, that was one of the thingsthat almost got the original Constitution
sunk,was the fact that it almost went down
to defeat in the ratification conventionsin the various states.
A couple of those conventions were likejust a couple of different clubs.
(30:20):
We almost did not have this constitu.
And the only reason we haveit is because people like James Madison,
Alexander Hamilton,those that were in favor of the new
constitution, made a gentlemen's promise.
They said, look, you know,we know you're upset
that we didn't have a Bill of Rights.
(30:41):
So, you know, we promise
that if you vote to ratifythis Constitution,
one of the first orders of businessof the new Congress will be to draft
a bill of Rights and send it to the statesas as as amendments to the Constitution.
And that sort of you know,that was enough to get the Constitution
to barely squeak by, barely squeaked by
(31:03):
into approval territory,and it was adopted by the requisite
nine states.
But once, once the new government was upand running,
James Madison had to really sort of cajole
his fellow congressmen to say, Hey,we promise
that we need to work on a Bill of Rights,but they were more busy
trying to get this governmentup and running.
(31:24):
But after, you know, so after,you know, going after him
a few times, they finally said,okay, James, you go and draft it.
And so we did. Yeah.
So this is Madison's language that we'retalking about in the Bill of Rights.
yeah. Yeah.
So he pulled togetherthe existing state constitution.
Since it did have defined Bill of Rights,he pulled together sort of the amendments
(31:45):
that the states had proposedto make to the Bill of Rights.
And so he's looking at theseand he sort of cobbles together,
you know, thisthese 12 amendments to the Constitution.
Only ten made itthrough the ratification process.
But you get the sensethat it was sort of very hurried.
It wasn't really thought out.
It wasn't subject to much debate.
(32:06):
It went through a few committeesand then was sent out.
It just was almost the Bill of Rightswas almost an afterthought
to prevent
a lot of anti-federalists from demandingthat a new constitutional convention
be convened to add more amendments to thebecause they were worried about the size
of the federal government,how powerful it can become.
And so, you know, it's kind of funny.
(32:29):
Today,everyone holds up the Bill of Rights
as this sort of iconic American icon,but it was really in its infancy.
It was just an afterthought.
It was a political expediency measure.
And so
and that allowed all that to saythe founders
weren't thinking about these broadgeneral phrases in the Constitution
(32:50):
and what might happen if the Supreme Court
were to start deciding cases about that.
And they didn't foresee the evolutionof a very sophisticated
economy, society, etc., and how importantsome of these issues might get.
And so when a lot of these major publicpolicy rulings about, you know, campaign
finance, the ability to spend moneyin connection with elections,
(33:14):
abortion, same sex
rights, I mean, gun rights, you name it,I mean,
that have a profound,everyday influence on Americans.
They would be shocked to see whatthat Bill of Rights
that they had considered anafterthought had it had the sort of power
it had given to unelectedjudges is how they viewed them.
(33:36):
They wanted to stick to their knittingin terms of deciding specific and narrow
legal disputes and have the government runby the representatives
of the people in a democracy,the president, the Congress, Congress
was designedto be the main engine of democracy.
The Supreme Court was, or any courtwas only supposed to get involved
any lower federal court,
(33:57):
if there was a case or controversythat need to be decided.
And it was the view that unelected judgeswho weren't accountable to the people
should just be,you know, doing their role as a empire
umpire or a referee on wiggle disputes.
But for them to see what that has morphedinto today,
this sort of notion of the Supreme Courtthat is supreme in matters
(34:20):
of constitutional interpretation,and what once they issue a ruling
that everyone has to listen to them,
whether it's Congress,whether it's the president,
whether they had a chance to arguetheir case in front of a court about,
you know, what
that provision should mean, the founderswould would just be shocked at this.
JamesMadison would be doing backflips probably.
yeah.
(34:41):
Well, Thomas Jefferson in particularwould be rolling in his grave
because he he in particular,
even back then, were soundingthe alarm bells
about how these vague provisionsof the Constitution could allow courts
who weren't accountable to the peopleto essentially dictate
very important issues of public policyin a democracy that is by definition
(35:05):
supposed to be a government of the people,by the people, and not by five unelected
lawyers that have been appointedto the Supreme Court
or any federal court for that matter.
It's almost like
who was a Plato in his philosopherkings, right?
It's almost like we've anointedthe five at least five justices
on the Supreme Court as our philosopherkings who determine issues of.
(35:28):
The Platonic guardians.
The platonic guardians.
I mean.
You see that
you see that phrase appearingin a lot of vigorous dissents by justices.
Who do we thinkwe are, a council of platonic guardians?
The only problem is they only use thatwhen it's convenient, you know,
and when they're the onesthat are sort of issuing these problems,
then they're being attacked for that,you know,
So it just sort of goes that, well.
(35:49):
How do we get to this?
You know, the foundersdidn't see it this way.
They didn't write the Constitutionwith the intent
of making the Supreme Courtour platonic guardians.
But yet it happened.
The reason why did that happened?
Is it because of default?
Because Congress wasn't
keeping up, unable politically to address
(36:10):
changes in the society,or because we couldn't
pass the constitutional amendmentsbecause of the structure that
the founders gave us.
Any any thoughts on why we got to.
yeah. I mean, I've written about this.
I've had some editorials in The New Yorker
or op ed piecesin The New York Times about it.
But there's a couple of things.
Number one, the sort of it's notyou can't say this was a mistake
(36:35):
because they just didn't foresee this,but they just didn't foresee
the rise of the very rapid rise.
After George Washington
stepped down from his presidency,George Washington hated Partizanship.
He thought it was damaging to the country.
They did choose to argue he was wrong. So.
I mean, he's right today.
(36:55):
I'd argue he's very right. He's right.
But they did not foresee how
once he stepped downand there was a power vacuum,
all of a sudden you had the rise of thesepolarized national political parties
that madeit made a lot of the institutions that the
the the founderscreated in the Constitution.
(37:16):
It made it harder for them to operatein the way that they had intended.
Congress being they they intended Congressto be the engine of democracy to to,
you know, because they were the closestto the people.
You know, the house is in part ofthe Senate, is elected every two years.
So, you know, it'sthe people they have the.
So-Called people's house on the house.
But with this, you know,this blue red divide that has occurred,
(37:39):
they can't get anything done.
So Congress has become the weakestof our institutions Of the three
main institutions, the executive,the legislative and the judicial.
And for that reason, now you see allthe power transferring to the executive.
You see all the power transfer,
I shouldn't say allbut a substantial power transferring to
(38:00):
the judiciary and the Supreme Court.
And so that's why you seethe kind of battles that we just witnessed
over the last, you know, fiveor six years over the White House.
That's why when there is a seat openon the Supreme Court,
it becomes a political circus in terms ofwho is nominated and who gets confirmed.
(38:20):
I mean, it's just all outpolitical warfare.
It's because the founders didn't see that,
you know, the main institutionthat it thought was going to drive
American democracyhas become very weakened and all that
power has shifted to institutionsthat weren't designed to do it.
And so that's why we have thesethese battles over
(38:40):
or the over the executive branch,over the judicial branch.
Well,that raises the interesting question.
So we have these
unelected individuals
sitting on the Supreme Court.
So I guess
a lot of people would disagree with this,but at least in the political theory,
is the most undemocraticbranch of government.
(39:03):
I think the argument is that the Houseof Representatives is the most Democratic
the Senate, which thethe founders originally envisioned it,
were to be appointed by the statelegislatures, legislatures And
and then every four years, of course,the president would be elected indirectly.
But yet the ones who were never
elected were the Supreme Court justices.
(39:25):
The question I have for you, though,if more and more power is going to these
unelected justices, what does that mean
to our Republican democracy?
I mean,it means that we're less democratic
and we're subject to sort of the shiftsin the political philosophy
of a majority of justices thatthat whole power on the Supreme Court.
(39:50):
So for many years, you know,the court was dominated
by Democratic appointeesthat tend to devote more liberally.
And that's when you had the Warren Court
that had, you know, had a vast expansionin protections
for civil rightsand civil liberties and criminal rights
and you sort of saw the the Burger Courtbeing a little bit more centrist
(40:12):
and then the Rehnquist court becomingmore conservative and wanting to sort of
cut back onsome of the more liberal extensions of the
of the Warren Court. And
and now,you know, of course, with President Trump,
unbelievably getting three appointmentsin a one term presidency.
(40:33):
That almost unheard of. Extremely rare.
He was able to tilt the balance.
I think George Washingtongot away with it.
I think he had no one to replace.
Right. Right.
But, I mean,
so he has pushed the Supreme Court
to a very conservative position.
And so now,
(40:55):
you know, ourour fundamental law depends on, you know,
which of presidents have the happenstance
to get a chanceto fill a vacancy on the Supreme Court.
And so our fundamental law sort of shiftsby virtue
of that happenstance, which is notwhat constitutional law should be.
(41:17):
Our fundamental law should be stable,it should be predictable.
People should be ableto order their lives around it.
And so it's not working out,
as the founders,I think, would have liked to have seen
it. And,
you know, and another part of the problem
is that the Supreme Court itselfhas been a lot of the problem.
(41:39):
They, you know, for many years,
you know, JusticeFelix Frankfurter, for example,
being a pragmatist, he would ahe would advocate judicial restraint.
We have to recognize our role here,
too, to sort of interpret the laws
that's put in front of us and decideno more than is necessary.
We really don't have the mandateto do any more than that.
(42:00):
While the Supreme Court has just done awaywith that, they are, as I said before,
they are just more than happyto sort of take on these these power
playing roles and
and, you know, frankly,
a lot of times these senatorsfrom whatever party that are appointing
them and are behind them,and that's why they put them on there,
(42:20):
they expect them to do that.
And so
the founders role,I think, of what a judge
should be in our societyhas has been radically altered.
And I think it'sa real part of the problem.
Well, I guess another way to
say that is power has a tendencyto grow, particularly if there's a vacuum.
It seems to me.
And I think what you're saying,if I understand
(42:41):
you correctly, is thatthere has been a vacuum created over
several hundred yearsbecause of Congress inability to act.
And that vacuum has been filledby the Supreme Court, and it is continuing
to be filled and will continue to grow,I think is what you're saying.
Well, yeah,but it's really a modern phenomena.
So, I mean, you know,the Supreme Court has been political for,
(43:04):
you know, in the in the 1800s, not so much
early 1900sbecame somewhat political until FDR
said, stop it or I'm going to get Congressto pack the court.
And so you get this new deal legislationthrough
and things quieted down for a little bit.
But then, you know, it was reallywith Brown versus Board of Education
(43:28):
where and I understand why this happened,because when the Supreme Court
in a unanimous decision decided nine zero,that that the southern states
mainly had to disagree,regulate their public school systems,
and the southern states were saying,you know, who are you?
You know,nine lawyers in in Washington, D.C.
to be telling us what we can dowith our public education system.
(43:51):
They there was massive
defiance in the southern states.
I remember as a young lad
sitting in the back seatas my father was driving us
and seeing these big billboardsthat said Impeach Earl Warren.
And they were all over the placeonce upon a time.
Yeah, yeah.
That was it was very controversial.
And so a few yearsafter Brown versus Board of Education,
(44:14):
a case came back to the Supreme Courtabout whether the state
of Arkansas and certain other stateshad to take certain remedial measures to
it. COOPER Versus Erin, is the decision
and the Supreme Court by that time
was sick of being ignored.
And so they signed a each justicesigned this opinion, which is very rare
(44:37):
for every justice, put their name onan opinion that that never happens.
So they were obviously tryingto make a statement here.
But unfortunately,what I've from my perspective,
maybe fortunately from the perspectivethey think judicial supremacy is a
good thing.
The court sort of
reached back in timeto Marbury versus Madison and took a line
(44:59):
out of Marbury versus Madisonthat I think they took out of context.
And they basically said, you know, we saidthen that we are supreme in matters
of constitutional interpretationand we mean it.
We are once we speak,everyone has to listen.
You know, whether it's the president,Congress, state, state governments.
I understand why they did it,
(45:20):
because they wereyou know, they were under assault.
But I think that
after that, it sort of
took on a life of its own, you know, thisthis notion of judicial supremacy.
And they just sort of evolved itfrom there.
And the people of
the most American people,this is an arcane legal issue.
They just sort of don't even focus on itand don't even know it's happening.
(45:43):
So you can you can say that
the Supreme Court sort of
accreted power to itselfwith no one to really oppose it
other than presidents once in a whilevoicing objections to the amount of power
that the Supreme Court has taken untoitself and Congress has become weakened.
And they're almost glad to seethe Supreme Court take on these concepts.
(46:06):
It takes. It offtheir controversial political.
Plate.
All they're care about is,you know, getting money to, you know,
run their next election to hopefullysave their jobs in Washington, D.C.
And they don't want anything controversialthat could potentially
get them voted out of office.
And so we have a lot of structural issuesin our democracy that are problematic
(46:29):
that, you know, it's not clearhow they're going to get fixed,
but we're going to have to muddle throughit until they are fixed
at the same time.
So, you know, I'm notI don't want to be a doomsayer.
I mean, I do think that
the founders, particularly JamesMadison and Company, were
were very sort of brilliant in the waythat they structured our government
(46:50):
in terms of separating power and checksand balances at the federal level.
And then you have vertical separationof power
between state, local andfederal government, where each are sort of
jealously guarding their.
And so I do think that that that sort of
reliance on the self-interestof politicians and governmental entities
(47:12):
and so forth createsthis sort of equilibrium
and stability that is allowedour constitutional system to survive.
Now, for over, you know, 200.
30 years, I think is the oldestconstitution still extant, isn't it,
except except for the Britishconstitution, which is unwritten?
Well, I mean,it just depends on how you describe it.
I mean, the state constitutionswere the first written constitutions in
(47:35):
you know, a lot of them have been amendedand replaced and so forth.
But certainly from a national government'sgovernance perspective,
I mean, our Constitution has endured witha limited number of amendments, probably
more than for far longer than any otherwritten constitution in the world.
In terms of reform,the of the Supreme Court.
I know it's been suggestedfrom time to time
(47:58):
I seem to have a vague memorythat Teddy Roosevelt,
when he was president, was proposing
a reform that would allow controversialor any decision,
really the Supreme Court on certainissues, probably constitutional issues,
could be reviewedby a national plebiscite.
And if you had a two thirdsor three quarters of the people vote
(48:19):
against a certain opinion, thenthe Supreme Court would would be reversed.
So you actually restore the people back
as the ultimate determinerof some of the Supreme Court decisions.
Is there
any discussion or any serious debate
about trying to recover
some of this powerthat the Supreme Court has
(48:41):
absorbed in the vacuum?
I mean, you see proposals being floatedand and I'm sure you could find
some draft billsthat have been introduced in Congress to
create a system of national referendums,
so forth on, you know, that address
that not only just Supreme Court cases,but other constitutional issues.
(49:05):
I mean, it happenedand it happens here in California.
I mean, same sex marriage.
You remember when the CaliforniaSupreme Court decided in a
4 to 3 decision that
the equal protection clauseof the California Constitution demanded
that the state recognizesame sex marriages in the same way
as traditional marriages.
(49:25):
And in Prop eight,the people in the referendum reversed
the California Supreme Courtand then, of course, the federal courts.
After the people had reversedthe California
Supreme Court, the federal courtsreversed the people of California.
But but, you know, that was justan example of how that works.
And so there have been a lot of proposals
(49:45):
for, that sort of thing,at the national level.
But again, it's just hard to getanything done these days, much less a.
Major change like that.
And yeah, well, California obviously as a
is a laboratory for the nationthat one can work.
Some can arguemaybe that no one wants to emulate
California governmentbecause it's so dysfunctional.
(50:06):
Others may say Californiagovernment is very functional.
So that's another debate for probably forfor another day.
But yetyou've got the laboratory experience
and that's been around for 100 yearsor so.
I think during the earlyor early progressive era of the 1900s,
I think is when that law came into placein California.
I'm not sure if I've got that correct.But somewhere in that era of.
(50:28):
the the national initiative,I mean, the California initiative.
Yes. Yes. Yeah.I think somewhere around that.
Because I'm so it's alsoit's been around for a long time
or but but
let's say the California modelwere proposed again
effectively it is now a proposedconstitutional amendment,
United States constitutional amendment.
So so so that there could be a referendumon decisions that are made.
(50:54):
To amend the council.
Or to reject.
It's always so you have an amendment
to the Constitution to restoreto the people the ability to review
under some format or formula decisionsmade by the Supreme Court.
So you can then shift
some power back from the Supreme Court,back to the people directly.
Would that be a good idea or a bad idea?
I personally think it something alongthose lines would be a good idea.
(51:18):
Canada has such a mechanism.
So in Canada,if this Canadian Supreme Court
interpreting their constitutionalBill of Rights
makes it a certainruling that a province disagrees with,
now the province canhold a vote to essentially
(51:38):
not comply with the
Supreme Court's rulingif it disagrees with it.
But then they have to every five yearssort of renew that vote.
So it comes up every five years.
But if they keep every five years votingto not comply with the Supreme Court
ruling, it's built into their Constitutionthat they don't don't have it.
So it is a they don't have to.
(51:59):
So it is a political checkon their Supreme Court.
And I think that I don't you know,it could work a lot of different ways.
But I definitely do think that we needmore of a Democratic check
on the Supreme Court because it justis pretty much nonexistent today.
I mean, there is somethingin the terms of the president
(52:20):
being able to appoint a vacancy,but that depends on happenstance.
It's a very ityou know, in terms of sort of
popular views
being incorporated by a justice that gets
put on the Supreme Court.
It's a it's a real lag period,you know, in of for that
(52:40):
that sort of thing to take place.
So it's a very ineffective politicalcheck on the Supreme Court.
And I do think we needwe need to do something in the future.
Professor McDonald, this has beena wonderful discussion today.
I want to thank youfrom the bottom of my heart.
I look forward to having you backfor part two.
Professor Barry McDonald,
(53:01):
thank you for listeningand watching the Power Score
and Seven Project, a production ofthe New Majority Foundation.
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