September 3, 2024 • 31 mins
On June 26, 2024, the Supreme Court issued their opinion in Murthy v. Missouri. Originally filed as Missouri v. Biden, this case concerns whether federal government officials violated five individuals’ freedom of speech by “coercing” or “significantly encouraging” social media companies to remove or demote particular content from their platforms.
Experts discuss and react to this 6-3 ruling.
Featuring:
Moderator: Brent Skorup, Legal Fellow, Center for Constitutional Studies, Cato Insitute
Speakers:
Corbin K. Barthold, Internet Policy Counsel and Director of Appellate Litigation
Josh Divine, Solicitor General, Missouri Attorney General's Office
Jenin Younes, Litigation Counsel, New Civil Liberties Alliance
Experts discuss and react to this 6-3 ruling.
Featuring:
Moderator: Brent Skorup, Legal Fellow, Center for Constitutional Studies, Cato Insitute
Speakers:
Corbin K. Barthold, Internet Policy Counsel and Director of Appellate Litigation
Josh Divine, Solicitor General, Missouri Attorney General's Office
Jenin Younes, Litigation Counsel, New Civil Liberties Alliance
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:02):
Welcome to sco Discast, a project of the Federalist Society
for Law and Public Policy Studies. Our contributors joined us
from around the country to bring you expert commentary on
US Supreme Court cases as they are argued and the
decisions are issued. The Federalist Society takes no position on
particular legal or public policy issues. All expressions are those
(00:23):
of the speaker. Hello, and welcome to scot Discast. I'm
your host, Kyle hammernis On, behalf of the Faculty division
of the Federalist Society. Today we have a moderated discussion
on Murthy versus Missouri, in which the Supreme Court issued
a six ' to three decision on June twenty sixth,
(00:43):
twenty twenty four. It is my honor to introduce our
moderator today, Brent score Up. Brent is a legal fellow
at the Cato Institute's Center for Constitutional Studies, and with
that I like to turn things over to Brent to
introduce our guests.
Speaker 2 (01:06):
Well, thank you toal Society for hosting this conversation. It's
uh in the Mercy case is as Justice Alitos and
descent when one of the biggest free speech cases the
Supreme Court has taken up in a while, and uh,
it's great, see a lot of a lot of interest
(01:27):
in it. So I'll introduce to the panelists and then
then we'll go.
Speaker 3 (01:32):
To discussion in alphabetic order.
Speaker 2 (01:37):
Cordin Martin Barthold is Tech Freedom's Internet Policy Council and
Director of Litigation. He received his j d from UC
Berkeley School of Law. He clerked for the Honorable Stephen D.
Mary Day at the Middle District of Florida and the
Honorable Robert H.
Speaker 3 (01:54):
Cleveland in the Eastern District of Michigan.
Speaker 2 (01:57):
After his clerkships, Corbyn was in so and later partner
at the Los Angeles office of Brown George Ross LP.
And he has since joined the Public Interest Law World,
and we're glad he has. Josh Devine is a Solicitor
General of Missouri, where he oversees the office's appellate and
(02:17):
special litigation divisions.
Speaker 3 (02:19):
He received his jd from Yale Law School, and.
Speaker 2 (02:22):
He clerked for Supreme Court well first Eleventh Circuit Judge
William Pryor.
Speaker 3 (02:28):
And then at the Supreme Court for Justice Thomas.
Speaker 2 (02:32):
Before serving as Solicitor General, he was chief counsel to
US Senator Josh Holly, and finally, jennye Unis is litigation
council for the New Civil Liberties Alliance. She holds a
jd from NYU School of Law. She spent the first
part of her career as an appellate public defender in
New York City, including arguing in several cases before the
(02:53):
New York State Court of Appeals. So I'd like to
go first to Janine and provide the audience, viewers, listeners
who perhaps weren't to wear the Murcy case before last week,
but you know, follow the Supreme Court and have an
(03:14):
interest in free speech issues. You and NCLA represent a
few clients in this case, and so if you take
a few minutes, please cover the facts in this case,
your clients, as well as the District Court and Fifth
Circuit decisions in the case.
Speaker 4 (03:35):
Thank you so much for having me. Well, I might
need more than a few minutes. I'll be as concise
as possible.
Speaker 3 (03:40):
Yeah, yeah, no takes.
Speaker 5 (03:42):
So.
Speaker 4 (03:42):
We represented four individual plaintiffs. Probably the two most people
know are Jay Bodicharia and Martin Kuldorf, who were co
authors of the Great Barrington Declaration, which was a declaration
that has showed lockdowns, basically saying that they were more
harmful to society than they were helpful, and they're epidemiologists
at Harvard and Stanford. We also represented Aaron Kerriotti as
(04:03):
a psychiatrist who declined to get the COVID vaccine because
he had natural immunity and lost his professorship as a result,
and Jill Hines, a health freedom worker in Louisiana, and
their core allegation was that they were censored on social media,
but not essentially because of the of the platform's content
moderation policies, but because the government had inserted itself into
(04:26):
COVID related censorship. Now, I also want to clarify there's
another plaintiff in the case, Jim Hoff, who we didn't represent,
who was alleging interference government interference with his speech that
was more about the twenty twenty election in the Hunter
Biden laptop, since the government was also involved in trying
to get those topics suppressed on social media. So the
(04:48):
facts in this case, it was a twenty thousand page record,
even though this was just up on appeal from a
preliminary in junction, so it's hard to summarize them briefly.
Speaker 5 (04:56):
But essentially the White House.
Speaker 4 (04:59):
Various Asian these such as the CDC, the Cybersecurity and
Infrastructure Security Agency which is housed within DHS, the FBI,
had in various ways tried to influence the companies in
order to censor disfavored speech. When it came to the
White House, there was often a lot of coercion going on.
There were direct threats private and public to try to
(05:20):
repeal Section two thirties protections, which, as most people know,
the companies rely on.
Speaker 5 (05:25):
In order to.
Speaker 4 (05:27):
Not have to be held liable for what people say
on their platforms, which the platforms need in order to
function as social media where people can just post whenever
they want.
Speaker 5 (05:36):
Also, there were threats to look.
Speaker 4 (05:37):
At antitrust provisions, and the platforms had reason to fear
that the administration was actually going to do this. Some
of the conduct was more collaborative. For instance, when it
came to the CDC, Facebook and other social media companies
were kind of working in tandem with the government saying like,
we're going to take these kind of posts down. The
(05:58):
CDC would send examples of posts that should be taken
down of flagging you know, so called vaccine misinformation mass misinformation, that.
Speaker 6 (06:08):
Kind of thing.
Speaker 4 (06:09):
I think it's really important to point out that although
the First Amendment protects, you know, so called misinformation even
false speech, our plaintiffs were not seeing things that were false.
They were saying mostly true things, I would say, perhaps almost.
Speaker 5 (06:26):
Entirely true things.
Speaker 4 (06:27):
And Jay Bodichari and Martin Couldorf are two of the
top epidemiologists in the world, and they were being censored
at the behest of the Biden administration on topics on
the areas of their expertise. So I think this case
really highlights why we have a First Amendment and why
we don't like, why do we don't allow the government
to be involved in this kind of thing or in
suppressing viewpoints that it disagrees with. So the core allegations
(06:53):
some additional allegations were raised in the complaint, but the core,
especially on the preliminary junction, the core complaint was First
Amendment violations, and the idea was that the government was
sort of instrumentalizing these private companies to accomplish its censorship aims,
and that was effectively a First Amendment violation because the
government can't use private industry to accomplish what it can't directly.
(07:16):
So the District Court in the Western District of Louisiana
found for us almost entirely, found that the plaintiffs had
standing and found that it was well this was on
a preliminary injunction, but that the government had likely violated
their First Amendment rights and that the harm was irreparable.
(07:38):
So granted the preliminary in junction. It was mostly upheld
by the Fifth Circuit. The Fifth Circuit kicked out a
couple of the defendants, so they found there wasn't enough
evidence that Niad and Ih, so mostly we're talking about
doctor Fauci, that he was actually involved in this censorship,
so he was not in the injunction.
Speaker 5 (07:56):
That importantly.
Speaker 4 (07:58):
Also, the district court denied government's motion to dismiss the complaint,
so the case in the district court is still live
despite the fact that the Supreme Court, uh reverse the
grant of the preliminary injunction.
Speaker 2 (08:15):
Yeah, thank you for that, and yeah, apologies a little
little housekeeping. Uh, you know, it's first of all, you know,
it's great we have you know, the two people who
represented parties in this case.
Speaker 3 (08:27):
Which is great.
Speaker 1 (08:30):
Uh.
Speaker 2 (08:30):
And I want to thank Soliciener General divine for for
taking time out of the business schedule, I'm sure for
for coming Next, I'd like to turn to Corbin.
Speaker 3 (08:41):
And uh And and ask for.
Speaker 2 (08:45):
An assessment of the District Court and in the circuit opinions.
I know I listen to podcasts from you, and why
I reached out to you. You have some good reservations
about the nature of the injunction, the breadth of the injunction,
and I think you may have had issues with the
(09:06):
standing as well. So and obviously the Spring Court found
the standing issues the most most salient here. So so Corbyn,
for you your assessment of the District Court, district opinion
and also the Spring Court opinion.
Speaker 3 (09:23):
Just how they came down how they did.
Speaker 6 (09:26):
Sure, okay. So as with the first question, is that
there's a lot there. It was it was pretty clear
to me how things were probably going to go with
the rest of the case from July fourth, twenty twenty three,
that's the day the District Court issued its opinion. The
District Court took what it called a bird's eye view
(09:48):
of traceability and so I kind of glossed over the
actual record. I didn't really make an attempt to link
any government conduct with any specific act of content moderation.
More importantly, though, the court presented a factual analysis that
was so riddled with airs and fabrications that it was
clearly going to be useless to any reviewing court. Also,
(10:11):
the judge bought into the censorship Industrial Complex narrative in
which the Stanford Internet ob Observatory was supposedly a puppet
of the government through SISA instead of a group doing
its own independent research and advocacy and let's not forget
exercising its own First Amendment rights. So those problems trickled
(10:34):
up to the Supreme Court. The government had to say
in a footnote in its reply that it couldn't possibly
respond to all the inaccuracies that were floating around, which
was true. Justice Soda Mayor said an oral argument that
she couldn't untangle all the inaccuracies in the planet of
its brief. She said, quote, you know, I have such
(10:55):
a problem with your brief, counselor you omit information that
changed is the context of some of your claims. You
attribute things to people who it didn't happen to dot
dot dot. I don't know what to make of all this.
And at the oral argument, the SG of Louisiana. You know,
I'm afraid he didn't really help matters. He kind of
(11:17):
bounced around. The Justice has struggled to understand him. Justice
Barrett said she wasn't even sure what his argument was.
He said, he you know, I'm a First Amendment purist,
and then he wasn't able to present the scope of
the categories of unprotected speech correctly when talking with Justice Kagan.
(11:38):
So the opinion didn't end up really being a surprise.
At footnote four, the justices, the majority wrote the Fifth
Circuit relied on the District Court's factual findings, many of
which unfortunately appear to be clearly erroneous. And again, I
mean that's true. Throughout our discussion, it's important to remember
(11:59):
that the district courts were thoroughly botched the factual record. Here,
the majority noted that neither the District Court nor the
Court of Appeals made any specific causation findings with respect
to any discreet instances of content moderation. It noted that
Justice Alito and Descent basically had to construct a theory
of causation on his own, and the Majority, for its part,
(12:23):
basically just refused to do that. It trotted out the
old line about how judges aren't pigs hunting for truffles
in the record. So in the end Justice Alito could
formulate his descent kind of only by boiling things down extensively.
He bypassed almost all of the sort of dish gallop
of facts and allegations that had been thrown around below,
(12:46):
and so the censorship industrial complex stuff fell by the wayside.
We didn't hear anything about sort of like significant encouragement
or entanglement. He had to kind of construct for himself
a Bantam Books analysis that was nothing like what the
plaintiffs had presented at oral argument, where they'd argue that
(13:07):
sort of any request by the government to take something
down crosses the line. So while job voting is a
really concerning issue, and I hope we can all kind
of agree on that through the discussion, my take was
this just wasn't really a good case to decide much
of anything. Now moving to the Supreme Court decisions, you know,
(13:30):
once the case got narrowed down to have the majority
and the dissent frame things, I do think there's reasonable
disagreement over the proper outcome. You had sort of this
jousting with different Supreme Court standing decisions, and maybe we
can get into that more. You know, Justice Alito certainly
had a point that the Court should try to apply
(13:53):
it standing doctrine consistently. But what you basically had was agreement,
like at least at a high level, that the government
exerted pressure on the platforms to moderate content relating to
COVID nineteen and the twenty twenty election. But the majority
said that it had to work quote to untangle the
mass of the plaintiff's injuries and government communications, and once
(14:16):
it did that, it just couldn't find any solid links. So,
you know, give one example, we heard about the Great
Barrington Declaration, but the majority found that the platforms had
taken action against that before there was really any communication
between the platforms and the government. So I think the
(14:37):
ultimate take home is the majority wasn't willing to engage
in sort of this imaginative reconstruction of the vast record
that was plocked in a pile before it. That was
kind of my biggest take home.
Speaker 3 (14:50):
Thank you for that.
Speaker 2 (14:52):
Next, like to turn to the general divine and if
you could talk about I guess I guess first of all,
talk about Missouri's interest in the case.
Speaker 3 (15:03):
Uh for bid a little unusual cy of state.
Speaker 2 (15:08):
I was glad to see Missouri take an interest in
the case, but talk about the state's interests, and also
I follow this case and there was uh if you
could also talk about some of the depositions and evidence, uh,
you know that that you have turned up in this case,
and then I'll probably follow up as well.
Speaker 5 (15:28):
Yeah, so I'll take it as an order. So Missouri's
interest in this case. One of the theories of standing
that we pressed is that, you know, there's this long
line of cases from the by the Spring Court that
the Spring Court doesn't really discuss very much in this opinion,
which is that the states have an interest in hearing
from their citizens. You've got you've got a bunch of
(15:49):
different cases terminiel O Guarnieri that all discussed that the
whole you know, part of the purpose of the First
Amendment and part of the purpose of free speech is
to enable states to really hear from their citizens so
that they can be responsive to the needs and concerns
of their citizens. So that's one of the theories of
standing we advance here, and that's a definite state interest.
(16:15):
The Spreme Court didn't deny that. Instead, what it said
is that you know that, well, you need to be
a little bit more specific and the type of thing
that you're wanting to hear. The problem, of course, is,
you know, when things are being censored, nobody really knows
what this universe is. You know, that's the whole point.
It's being censored, and so you don't know exactly what's
going on. You don't exactly know what you're unable to
(16:36):
hear at that point, and so the Spreme Court's kind
of set up this impossible standard from the perspective of
the listener's ability to identify the things that they would
like to hear, but that they're unable to. The second
thing that Spring Court does is it kind of just
it pretty much ignores about twenty years of precedent with
respect to the ability of states to bring what are
(16:56):
called parents potrai lawsuits against the federal government. So you've
got these you've got these cases from the nineties and
early two thousands where the Supreme Court allows states to
do that, and basically a parents patriay action just means you're,
in essence, asserting you're as certain that there's a very
widespread harm to the people of Missouri to the people
(17:19):
of the state. And what you're essentially doing is you're
certain that this this harm has become so widespread that
it has in fact become an injury to the state itself.
And the Spring Court allowed this in a nineteen ninety
five case. The Supreme Court allowed this in a two
thousand and seven case. And what they did here is
they dug up dicta from a nineteen sixties case and
(17:39):
they said and they just cite that and say, well,
this is you know, the states can't bring parents potry
suits against the federal government. But if you actually look
at that, that's dealing with situations where where the state
isn't actually asserting its own kind of harm, it's purely
asserting the third party harms of other individuals. In every
single case where a state has a its own theory
(18:01):
of harm, the US Supreme Court has allowed the state
to bring a parents potry action. And the Supreme Court
just completely misses that entire line of doctrine, doesn't discuss
it at all. And so I think we've got a
very unusual parents potry decision from the Supreme Court on
this issue that really just doesn't wrestle with that fundamental
difference and what what gives us states the ability and
(18:24):
the interest to bring a suit like this. I want
to I want to respond to a couple of things
that Corbyn said. I think we've got a large amount
of no no surprise that you know one of the
individuals represent these individuals, Uh, these pointiffs disagrees with what
Corbin said. Let let me let me just let me
let me just leave it at this, which is that
(18:46):
you know, nobody really dispeedes at the Supreme Court. Nobody
really disputes that work. There were very severe First Amendment
of violations that were going on. I mean, the majority opinion,
for example, discusses at one point like, yeah, look like
that pressure from the federal government actually altered the policies
of Facebook and Twitter and these other organizations. But then
(19:08):
the Supreme Course says, but you know, that's a past violation.
You can't necessarily get prospective relief from that. But they
don't deny that they were blatant violations. The government had
insinuated itself into this atmosphere and had actually physically changed
the policies of Facebook and other organizations to induce further
future suppression. But I think just from a causation standpoint,
(19:35):
if you look at the facts, if you look at
what happened in July twenty twenty one, you see a rapid,
much more aggressive posture from the White House, from the
Surgeon General, from some of the other defendants in July
twenty twenty one, much more aggressive, and then you find
an uptick in censorship after that. So it's never been
(19:56):
our position that, you know, there hasn't been some censorship
or you know, suppression or content moderation or whatever term
you want to use. It's never been our position that
there hasn't been some of that already going on by
the platforms. But what we identified are you know, you've
got some of these discrete events July twenty twenty one,
(20:18):
huge increase in aggression from the White House, and then
you also see an increase in content moderation or suppression
or censorship. And it doesn't take a genius to be
able to draw that inference there. Now, look, you know
you can't draw certainty inference there, but the doctrine doesn't
require any kind of certainty. It requires a likelihood. And
(20:39):
so you know, I do want to very strongly to speed,
the idea that we didn't establish causation, that we didn't
do anything like that. I think the Supreme Court basically
looked at the record and you know, refused to draw
a single inference in our favor, which was different from
the district court and different from the Court of Appeals.
Speaker 2 (20:56):
I'll ask a follow up on that, just something that
jumped out in the opinion, and then I'll ask each
of you for things that jumped out in the opinion
in or arguments itself. But just find a sister general
Divines comment. So the majorities about traceability. The majority statement said,
the primary weakness in this record, this is a quote
(21:20):
in the record of past restrictions, is the lack of
specific causation findings with respect to any discrete instance of
content moderation end quote.
Speaker 3 (21:29):
So maybe, Janina, a person go to you. I'm not
an expert on standing.
Speaker 2 (21:36):
Frankly, that seems like a very high standard to establish
standing that you need to show in the first amment
of context specific causation findings or speak with respect to
any discrete instance of content or moderation. Your response to
that statement from the court, Yeah.
Speaker 4 (21:57):
It seems to me that the Court's basically requiring that
you show that a specific post was censored because of
the government, which seems very very hard to do, and.
Speaker 5 (22:07):
I'll use So this was actually an.
Speaker 4 (22:09):
Example that came out later through a congressional investigation, but
it's a very clear one. There were internal emails from
Meta that were revealed as a result of this investigation
where Nick Clegg, who's an executive there, wrote to another
employee and said, can you remind me why we censored
the lab leak theory, and the other employees says, because
we were under pressure from the White House, we shouldn't
have done it.
Speaker 5 (22:30):
Unfortunately, that was not for the.
Speaker 4 (22:32):
Record because it was came out after the Fifth Circuit briefing,
and there's a lot of stuff in the record that
is very similar to that. That's just the most stark example,
so I think it crystallizes it. But that is very
clear that this entire theory, this entire narrative, this entire
line of thought was censored on social media because of
the government. And I think even there, the court is
(22:52):
insinuating that you would have to show that your specific
post was censored because the government had called you out
or named you.
Speaker 5 (22:59):
I don't know who's going to be able to do that.
Speaker 4 (23:01):
There may be two people I can think of, RFK
and Alex Bearnson, who are specifically singled out by government
officials by name. I also want to respond to if
I made one thing that Corbin said about the factual inaccuracies.
I really wanted to speed that this was a twenty
thousand page record the district court might have gotten, you know,
said a couple of things not exactly the way I
would have characterized them. There was one email from Rob
(23:24):
Flaherty where Flerty was using very colorful language to demand
the takedown of I think a parody account of the
President's granddaughter. And it wasn't about COVID misinformation, but we
had actually not represented that, misrepresented that, and I think
that was what was insinuated. We were showing it as
part of a pattern of the government's treating these companies
who sort of subservient. So I think the idea, you know,
(23:48):
I don't know what inaccuracy is anyone's talking about, and
if Corbin would like to elaborate and be happy to respond,
but I think that the lower courts were actually really
understood the facts well, and I would say I don't
make the Supreme Court read the record. It was clear
to me that the Descent had a much greater, much
better grasp of the facts. I guess, did I respond
(24:08):
to your question?
Speaker 3 (24:09):
Yeah, yeah, you did.
Speaker 2 (24:11):
And I'll with that, I'll turn to Corbin. Don't want
to put you on the spot. Well, the last thing
I want to do, I also want you to, maybe
I'm being hyperbolic, I want you to walk me off
the ledge that this this traceability standard as I read it,
(24:32):
seems to say you've got to show you know, you've
got to show the email, where the getting where the
government official said take Brent Corp's post down, And it
seems like short of that, it's pretty difficult.
Speaker 5 (24:47):
Yeah.
Speaker 3 (24:47):
Feel free to respond to to anything that's been said.
Speaker 6 (24:49):
Yeah, I mean, the last thing I want to do
is take up our whole hour with Janine and me
arguing the record. So you know, the twenty two million
tweets versus four thousand and is a problem. The fabricated
quotes of Renee Darresta of targeting domestic speakers, of the
threat of quote legal consequences with the press. Secretary never
(25:11):
said you have problems with talking about SISA and how
the Election Integrity Partnership was actually set up. You have
problems with the word targeting being used. I would recommend
people take a look at Stanford's a Meekus brief in
the case where they get into this. And I'm sure
Janine probably has disagreements with what that brief says, but
(25:35):
I think that brief and certainly footnote four speak for themselves.
I don't think Justice Barrett would make that line lightly
now hopefully to say some things that Janine will agree with.
I think what we ultimately need to land on is
something between the broadest possible reading of the majority opinion
(25:56):
and the dissent, because at times the majority does I
mean they never say this explicitly, but they make it
sound like you need to be like named directly, and
that just can't, I can't be the standard. I mean,
that's highly problematic. They noted that the platforms had, you know,
independent incentives to moderate content, and I have thoughts on that,
(26:16):
but like I know this much, that cannot possibly be
like a get out of jail free card. It can't
be like, well, somewhere in the mix, we have an
incentive and and so you know, plaintiffs lose that can't
be right, Josh. You know, I think I think it's
an interesting question whether the majority agrees that there was
no violation. I mean, I don't think they ever say
(26:40):
that explicitly. That's certainly not my read of the justices
from the oral argument, but you're right, like they don't
they don't come in on that. I think ultimately we
have to kind of hope that like this opinion is.
Speaker 5 (26:54):
Not read broadly.
Speaker 6 (26:55):
They they their decision was shaped in part, I think
by how it was litigated and adjudicated below.
Speaker 5 (27:04):
Vulo being a few months before.
Speaker 6 (27:07):
Maybe we should take heart that, like you know, these
things are not a lot is left to be fought over.
And then the last thing I just want to insert
because I don't want to derail us. But I thought
Josh's discussion was interesting, and I'm wondering if he has
thoughts on whether maybe some of the conservative justices and
the majority were like spooked by Massachusetts versus EPA, seeing
(27:30):
like a decision that maybe all of us in the
room would be see as like a stretch of what
states can bring in and sue on and if that
maybe derailed them, And the reason I bring that up
in this answer is I think there just were a
lot of hydraulic pressures on this case that might have
shaped the majority opinion in ways that maybe they'll actually
change course of it in future decisions.
Speaker 5 (27:52):
Well, so, I've been thinking about this a lot, and
you know, there was a lot of coverage in the
past four years since Justice Barrett was nominated of like, oh,
this is the conservative court that's going to like roll
back everybody's rights, blah blah blah. Like that's what you're
getting from. That's what you're getting from, you know, the
cottage industry, niche press that is that appears to just
(28:16):
criticize the Supreme Court twenty four hours a day, right,
Like that's kind of that's the kind of coverage you're getting.
And in fact, what you get instead is, you know,
a group of justices who have, for you know, their
entire legal upbringing, been very, very very skeptical of standing.
And so I mean that's what you that's what you've
seen this year and last year and the year before
(28:37):
is just really just ratcheting up the standing requirements in
case after case after case. So Mass v. E.
Speaker 6 (28:45):
Pa.
Speaker 5 (28:46):
You know, pretty much most conservatives disagreed with that opinion.
Thought it was, you know, far beyond the outer reaches
of standing, and so it almost looks like they're kind
of trying to self overrule some of these opinions, like
I said, in the parent potry context, like they're just
the Spring Court is absolutely wrong to cite that that
decision and SNAP without recognizing that there are several different
(29:09):
decisions after Snap that completely undermined that opinion with respect
to parents patry. Spring Court is entirely wrong, and they're
ignoring that line of precedents there. But you look at
that end and then you know, same thing with the
Department of Commerce. I think Justice Alito is right. I
don't know how you can you know, the Department of
(29:29):
Commerce was unanimous with respect to the standing question. New
York could sue because there was a predictable effect that
the census question on the or the citizenship question on
the census was going to lead to reduce, you know,
a reduced number of individuals filling out the census. Well,
of course, it's a predictable effect that when you have
(29:50):
this kind of government pressure, there is going to be censorship.
And so I think the I think it's a similar
situation where the Spreme court is kind of trying to
cabin these other standing doctrines without saying so explicitly.
Speaker 1 (30:05):
Thank you for listening to this episode of SCO Discast.
SCO Discust is a project of the Federalist Society, a
not for profit educational organization of conservative and libertarian law students,
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(30:26):
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Speaker 3 (30:30):
Is, not what it should be.
Speaker 1 (30:32):
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Speaker 4 (30:59):
This has been a fed side wo audio production.
Welcome to sco Discast, a project of the Federalist Society
for Law and Public Policy Studies. Our contributors joined us
from around the country to bring you expert commentary on
US Supreme Court cases as they are argued and the
decisions are issued. The Federalist Society takes no position on
particular legal or public policy issues. All expressions are those
(00:23):
of the speaker. Hello, and welcome to scot Discast. I'm
your host, Kyle hammernis On, behalf of the Faculty division
of the Federalist Society. Today we have a moderated discussion
on Murthy versus Missouri, in which the Supreme Court issued
a six ' to three decision on June twenty sixth,
(00:43):
twenty twenty four. It is my honor to introduce our
moderator today, Brent score Up. Brent is a legal fellow
at the Cato Institute's Center for Constitutional Studies, and with
that I like to turn things over to Brent to
introduce our guests.
Speaker 2 (01:06):
Well, thank you toal Society for hosting this conversation. It's
uh in the Mercy case is as Justice Alitos and
descent when one of the biggest free speech cases the
Supreme Court has taken up in a while, and uh,
it's great, see a lot of a lot of interest
(01:27):
in it. So I'll introduce to the panelists and then
then we'll go.
Speaker 3 (01:32):
To discussion in alphabetic order.
Speaker 2 (01:37):
Cordin Martin Barthold is Tech Freedom's Internet Policy Council and
Director of Litigation. He received his j d from UC
Berkeley School of Law. He clerked for the Honorable Stephen D.
Mary Day at the Middle District of Florida and the
Honorable Robert H.
Speaker 3 (01:54):
Cleveland in the Eastern District of Michigan.
Speaker 2 (01:57):
After his clerkships, Corbyn was in so and later partner
at the Los Angeles office of Brown George Ross LP.
And he has since joined the Public Interest Law World,
and we're glad he has. Josh Devine is a Solicitor
General of Missouri, where he oversees the office's appellate and
(02:17):
special litigation divisions.
Speaker 3 (02:19):
He received his jd from Yale Law School, and.
Speaker 2 (02:22):
He clerked for Supreme Court well first Eleventh Circuit Judge
William Pryor.
Speaker 3 (02:28):
And then at the Supreme Court for Justice Thomas.
Speaker 2 (02:32):
Before serving as Solicitor General, he was chief counsel to
US Senator Josh Holly, and finally, jennye Unis is litigation
council for the New Civil Liberties Alliance. She holds a
jd from NYU School of Law. She spent the first
part of her career as an appellate public defender in
New York City, including arguing in several cases before the
(02:53):
New York State Court of Appeals. So I'd like to
go first to Janine and provide the audience, viewers, listeners
who perhaps weren't to wear the Murcy case before last week,
but you know, follow the Supreme Court and have an
(03:14):
interest in free speech issues. You and NCLA represent a
few clients in this case, and so if you take
a few minutes, please cover the facts in this case,
your clients, as well as the District Court and Fifth
Circuit decisions in the case.
Speaker 4 (03:35):
Thank you so much for having me. Well, I might
need more than a few minutes. I'll be as concise
as possible.
Speaker 3 (03:40):
Yeah, yeah, no takes.
Speaker 5 (03:42):
So.
Speaker 4 (03:42):
We represented four individual plaintiffs. Probably the two most people
know are Jay Bodicharia and Martin Kuldorf, who were co
authors of the Great Barrington Declaration, which was a declaration
that has showed lockdowns, basically saying that they were more
harmful to society than they were helpful, and they're epidemiologists
at Harvard and Stanford. We also represented Aaron Kerriotti as
(04:03):
a psychiatrist who declined to get the COVID vaccine because
he had natural immunity and lost his professorship as a result,
and Jill Hines, a health freedom worker in Louisiana, and
their core allegation was that they were censored on social media,
but not essentially because of the of the platform's content
moderation policies, but because the government had inserted itself into
(04:26):
COVID related censorship. Now, I also want to clarify there's
another plaintiff in the case, Jim Hoff, who we didn't represent,
who was alleging interference government interference with his speech that
was more about the twenty twenty election in the Hunter
Biden laptop, since the government was also involved in trying
to get those topics suppressed on social media. So the
(04:48):
facts in this case, it was a twenty thousand page record,
even though this was just up on appeal from a
preliminary in junction, so it's hard to summarize them briefly.
Speaker 5 (04:56):
But essentially the White House.
Speaker 4 (04:59):
Various Asian these such as the CDC, the Cybersecurity and
Infrastructure Security Agency which is housed within DHS, the FBI,
had in various ways tried to influence the companies in
order to censor disfavored speech. When it came to the
White House, there was often a lot of coercion going on.
There were direct threats private and public to try to
(05:20):
repeal Section two thirties protections, which, as most people know,
the companies rely on.
Speaker 5 (05:25):
In order to.
Speaker 4 (05:27):
Not have to be held liable for what people say
on their platforms, which the platforms need in order to
function as social media where people can just post whenever
they want.
Speaker 5 (05:36):
Also, there were threats to look.
Speaker 4 (05:37):
At antitrust provisions, and the platforms had reason to fear
that the administration was actually going to do this. Some
of the conduct was more collaborative. For instance, when it
came to the CDC, Facebook and other social media companies
were kind of working in tandem with the government saying like,
we're going to take these kind of posts down. The
(05:58):
CDC would send examples of posts that should be taken
down of flagging you know, so called vaccine misinformation mass misinformation, that.
Speaker 6 (06:08):
Kind of thing.
Speaker 4 (06:09):
I think it's really important to point out that although
the First Amendment protects, you know, so called misinformation even
false speech, our plaintiffs were not seeing things that were false.
They were saying mostly true things, I would say, perhaps almost.
Speaker 5 (06:26):
Entirely true things.
Speaker 4 (06:27):
And Jay Bodichari and Martin Couldorf are two of the
top epidemiologists in the world, and they were being censored
at the behest of the Biden administration on topics on
the areas of their expertise. So I think this case
really highlights why we have a First Amendment and why
we don't like, why do we don't allow the government
to be involved in this kind of thing or in
suppressing viewpoints that it disagrees with. So the core allegations
(06:53):
some additional allegations were raised in the complaint, but the core,
especially on the preliminary junction, the core complaint was First
Amendment violations, and the idea was that the government was
sort of instrumentalizing these private companies to accomplish its censorship aims,
and that was effectively a First Amendment violation because the
government can't use private industry to accomplish what it can't directly.
(07:16):
So the District Court in the Western District of Louisiana
found for us almost entirely, found that the plaintiffs had
standing and found that it was well this was on
a preliminary injunction, but that the government had likely violated
their First Amendment rights and that the harm was irreparable.
(07:38):
So granted the preliminary in junction. It was mostly upheld
by the Fifth Circuit. The Fifth Circuit kicked out a
couple of the defendants, so they found there wasn't enough
evidence that Niad and Ih, so mostly we're talking about
doctor Fauci, that he was actually involved in this censorship,
so he was not in the injunction.
Speaker 5 (07:56):
That importantly.
Speaker 4 (07:58):
Also, the district court denied government's motion to dismiss the complaint,
so the case in the district court is still live
despite the fact that the Supreme Court, uh reverse the
grant of the preliminary injunction.
Speaker 2 (08:15):
Yeah, thank you for that, and yeah, apologies a little
little housekeeping. Uh, you know, it's first of all, you know,
it's great we have you know, the two people who
represented parties in this case.
Speaker 3 (08:27):
Which is great.
Speaker 1 (08:30):
Uh.
Speaker 2 (08:30):
And I want to thank Soliciener General divine for for
taking time out of the business schedule, I'm sure for
for coming Next, I'd like to turn to Corbin.
Speaker 3 (08:41):
And uh And and ask for.
Speaker 2 (08:45):
An assessment of the District Court and in the circuit opinions.
I know I listen to podcasts from you, and why
I reached out to you. You have some good reservations
about the nature of the injunction, the breadth of the injunction,
and I think you may have had issues with the
(09:06):
standing as well. So and obviously the Spring Court found
the standing issues the most most salient here. So so Corbyn,
for you your assessment of the District Court, district opinion
and also the Spring Court opinion.
Speaker 3 (09:23):
Just how they came down how they did.
Speaker 6 (09:26):
Sure, okay. So as with the first question, is that
there's a lot there. It was it was pretty clear
to me how things were probably going to go with
the rest of the case from July fourth, twenty twenty three,
that's the day the District Court issued its opinion. The
District Court took what it called a bird's eye view
(09:48):
of traceability and so I kind of glossed over the
actual record. I didn't really make an attempt to link
any government conduct with any specific act of content moderation.
More importantly, though, the court presented a factual analysis that
was so riddled with airs and fabrications that it was
clearly going to be useless to any reviewing court. Also,
(10:11):
the judge bought into the censorship Industrial Complex narrative in
which the Stanford Internet ob Observatory was supposedly a puppet
of the government through SISA instead of a group doing
its own independent research and advocacy and let's not forget
exercising its own First Amendment rights. So those problems trickled
(10:34):
up to the Supreme Court. The government had to say
in a footnote in its reply that it couldn't possibly
respond to all the inaccuracies that were floating around, which
was true. Justice Soda Mayor said an oral argument that
she couldn't untangle all the inaccuracies in the planet of
its brief. She said, quote, you know, I have such
(10:55):
a problem with your brief, counselor you omit information that
changed is the context of some of your claims. You
attribute things to people who it didn't happen to dot
dot dot. I don't know what to make of all this.
And at the oral argument, the SG of Louisiana. You know,
I'm afraid he didn't really help matters. He kind of
(11:17):
bounced around. The Justice has struggled to understand him. Justice
Barrett said she wasn't even sure what his argument was.
He said, he you know, I'm a First Amendment purist,
and then he wasn't able to present the scope of
the categories of unprotected speech correctly when talking with Justice Kagan.
(11:38):
So the opinion didn't end up really being a surprise.
At footnote four, the justices, the majority wrote the Fifth
Circuit relied on the District Court's factual findings, many of
which unfortunately appear to be clearly erroneous. And again, I
mean that's true. Throughout our discussion, it's important to remember
(11:59):
that the district courts were thoroughly botched the factual record. Here,
the majority noted that neither the District Court nor the
Court of Appeals made any specific causation findings with respect
to any discreet instances of content moderation. It noted that
Justice Alito and Descent basically had to construct a theory
of causation on his own, and the Majority, for its part,
(12:23):
basically just refused to do that. It trotted out the
old line about how judges aren't pigs hunting for truffles
in the record. So in the end Justice Alito could
formulate his descent kind of only by boiling things down extensively.
He bypassed almost all of the sort of dish gallop
of facts and allegations that had been thrown around below,
(12:46):
and so the censorship industrial complex stuff fell by the wayside.
We didn't hear anything about sort of like significant encouragement
or entanglement. He had to kind of construct for himself
a Bantam Books analysis that was nothing like what the
plaintiffs had presented at oral argument, where they'd argue that
(13:07):
sort of any request by the government to take something
down crosses the line. So while job voting is a
really concerning issue, and I hope we can all kind
of agree on that through the discussion, my take was
this just wasn't really a good case to decide much
of anything. Now moving to the Supreme Court decisions, you know,
(13:30):
once the case got narrowed down to have the majority
and the dissent frame things, I do think there's reasonable
disagreement over the proper outcome. You had sort of this
jousting with different Supreme Court standing decisions, and maybe we
can get into that more. You know, Justice Alito certainly
had a point that the Court should try to apply
(13:53):
it standing doctrine consistently. But what you basically had was agreement,
like at least at a high level, that the government
exerted pressure on the platforms to moderate content relating to
COVID nineteen and the twenty twenty election. But the majority
said that it had to work quote to untangle the
mass of the plaintiff's injuries and government communications, and once
(14:16):
it did that, it just couldn't find any solid links. So,
you know, give one example, we heard about the Great
Barrington Declaration, but the majority found that the platforms had
taken action against that before there was really any communication
between the platforms and the government. So I think the
(14:37):
ultimate take home is the majority wasn't willing to engage
in sort of this imaginative reconstruction of the vast record
that was plocked in a pile before it. That was
kind of my biggest take home.
Speaker 3 (14:50):
Thank you for that.
Speaker 2 (14:52):
Next, like to turn to the general divine and if
you could talk about I guess I guess first of all,
talk about Missouri's interest in the case.
Speaker 3 (15:03):
Uh for bid a little unusual cy of state.
Speaker 2 (15:08):
I was glad to see Missouri take an interest in
the case, but talk about the state's interests, and also
I follow this case and there was uh if you
could also talk about some of the depositions and evidence, uh,
you know that that you have turned up in this case,
and then I'll probably follow up as well.
Speaker 5 (15:28):
Yeah, so I'll take it as an order. So Missouri's
interest in this case. One of the theories of standing
that we pressed is that, you know, there's this long
line of cases from the by the Spring Court that
the Spring Court doesn't really discuss very much in this opinion,
which is that the states have an interest in hearing
from their citizens. You've got you've got a bunch of
(15:49):
different cases terminiel O Guarnieri that all discussed that the
whole you know, part of the purpose of the First
Amendment and part of the purpose of free speech is
to enable states to really hear from their citizens so
that they can be responsive to the needs and concerns
of their citizens. So that's one of the theories of
standing we advance here, and that's a definite state interest.
(16:15):
The Spreme Court didn't deny that. Instead, what it said
is that you know that, well, you need to be
a little bit more specific and the type of thing
that you're wanting to hear. The problem, of course, is,
you know, when things are being censored, nobody really knows
what this universe is. You know, that's the whole point.
It's being censored, and so you don't know exactly what's
going on. You don't exactly know what you're unable to
(16:36):
hear at that point, and so the Spreme Court's kind
of set up this impossible standard from the perspective of
the listener's ability to identify the things that they would
like to hear, but that they're unable to. The second
thing that Spring Court does is it kind of just
it pretty much ignores about twenty years of precedent with
respect to the ability of states to bring what are
(16:56):
called parents potrai lawsuits against the federal government. So you've
got these you've got these cases from the nineties and
early two thousands where the Supreme Court allows states to
do that, and basically a parents patriay action just means you're,
in essence, asserting you're as certain that there's a very
widespread harm to the people of Missouri to the people
(17:19):
of the state. And what you're essentially doing is you're
certain that this this harm has become so widespread that
it has in fact become an injury to the state itself.
And the Spring Court allowed this in a nineteen ninety
five case. The Supreme Court allowed this in a two
thousand and seven case. And what they did here is
they dug up dicta from a nineteen sixties case and
(17:39):
they said and they just cite that and say, well,
this is you know, the states can't bring parents potry
suits against the federal government. But if you actually look
at that, that's dealing with situations where where the state
isn't actually asserting its own kind of harm, it's purely
asserting the third party harms of other individuals. In every
single case where a state has a its own theory
(18:01):
of harm, the US Supreme Court has allowed the state
to bring a parents potry action. And the Supreme Court
just completely misses that entire line of doctrine, doesn't discuss
it at all. And so I think we've got a
very unusual parents potry decision from the Supreme Court on
this issue that really just doesn't wrestle with that fundamental
difference and what what gives us states the ability and
(18:24):
the interest to bring a suit like this. I want
to I want to respond to a couple of things
that Corbyn said. I think we've got a large amount
of no no surprise that you know one of the
individuals represent these individuals, Uh, these pointiffs disagrees with what
Corbin said. Let let me let me just let me
let me just leave it at this, which is that
(18:46):
you know, nobody really dispeedes at the Supreme Court. Nobody
really disputes that work. There were very severe First Amendment
of violations that were going on. I mean, the majority opinion,
for example, discusses at one point like, yeah, look like
that pressure from the federal government actually altered the policies
of Facebook and Twitter and these other organizations. But then
(19:08):
the Supreme Course says, but you know, that's a past violation.
You can't necessarily get prospective relief from that. But they
don't deny that they were blatant violations. The government had
insinuated itself into this atmosphere and had actually physically changed
the policies of Facebook and other organizations to induce further
future suppression. But I think just from a causation standpoint,
(19:35):
if you look at the facts, if you look at
what happened in July twenty twenty one, you see a rapid,
much more aggressive posture from the White House, from the
Surgeon General, from some of the other defendants in July
twenty twenty one, much more aggressive, and then you find
an uptick in censorship after that. So it's never been
(19:56):
our position that, you know, there hasn't been some censorship
or you know, suppression or content moderation or whatever term
you want to use. It's never been our position that
there hasn't been some of that already going on by
the platforms. But what we identified are you know, you've
got some of these discrete events July twenty twenty one,
(20:18):
huge increase in aggression from the White House, and then
you also see an increase in content moderation or suppression
or censorship. And it doesn't take a genius to be
able to draw that inference there. Now, look, you know
you can't draw certainty inference there, but the doctrine doesn't
require any kind of certainty. It requires a likelihood. And
(20:39):
so you know, I do want to very strongly to speed,
the idea that we didn't establish causation, that we didn't
do anything like that. I think the Supreme Court basically
looked at the record and you know, refused to draw
a single inference in our favor, which was different from
the district court and different from the Court of Appeals.
Speaker 2 (20:56):
I'll ask a follow up on that, just something that
jumped out in the opinion, and then I'll ask each
of you for things that jumped out in the opinion
in or arguments itself. But just find a sister general
Divines comment. So the majorities about traceability. The majority statement said,
the primary weakness in this record, this is a quote
(21:20):
in the record of past restrictions, is the lack of
specific causation findings with respect to any discrete instance of
content moderation end quote.
Speaker 3 (21:29):
So maybe, Janina, a person go to you. I'm not
an expert on standing.
Speaker 2 (21:36):
Frankly, that seems like a very high standard to establish
standing that you need to show in the first amment
of context specific causation findings or speak with respect to
any discrete instance of content or moderation. Your response to
that statement from the court, Yeah.
Speaker 4 (21:57):
It seems to me that the Court's basically requiring that
you show that a specific post was censored because of
the government, which seems very very hard to do, and.
Speaker 5 (22:07):
I'll use So this was actually an.
Speaker 4 (22:09):
Example that came out later through a congressional investigation, but
it's a very clear one. There were internal emails from
Meta that were revealed as a result of this investigation
where Nick Clegg, who's an executive there, wrote to another
employee and said, can you remind me why we censored
the lab leak theory, and the other employees says, because
we were under pressure from the White House, we shouldn't
have done it.
Speaker 5 (22:30):
Unfortunately, that was not for the.
Speaker 4 (22:32):
Record because it was came out after the Fifth Circuit briefing,
and there's a lot of stuff in the record that
is very similar to that. That's just the most stark example,
so I think it crystallizes it. But that is very
clear that this entire theory, this entire narrative, this entire
line of thought was censored on social media because of
the government. And I think even there, the court is
(22:52):
insinuating that you would have to show that your specific
post was censored because the government had called you out
or named you.
Speaker 5 (22:59):
I don't know who's going to be able to do that.
Speaker 4 (23:01):
There may be two people I can think of, RFK
and Alex Bearnson, who are specifically singled out by government
officials by name. I also want to respond to if
I made one thing that Corbin said about the factual inaccuracies.
I really wanted to speed that this was a twenty
thousand page record the district court might have gotten, you know,
said a couple of things not exactly the way I
would have characterized them. There was one email from Rob
(23:24):
Flaherty where Flerty was using very colorful language to demand
the takedown of I think a parody account of the
President's granddaughter. And it wasn't about COVID misinformation, but we
had actually not represented that, misrepresented that, and I think
that was what was insinuated. We were showing it as
part of a pattern of the government's treating these companies
who sort of subservient. So I think the idea, you know,
(23:48):
I don't know what inaccuracy is anyone's talking about, and
if Corbin would like to elaborate and be happy to respond,
but I think that the lower courts were actually really
understood the facts well, and I would say I don't
make the Supreme Court read the record. It was clear
to me that the Descent had a much greater, much
better grasp of the facts. I guess, did I respond
(24:08):
to your question?
Speaker 3 (24:09):
Yeah, yeah, you did.
Speaker 2 (24:11):
And I'll with that, I'll turn to Corbin. Don't want
to put you on the spot. Well, the last thing
I want to do, I also want you to, maybe
I'm being hyperbolic, I want you to walk me off
the ledge that this this traceability standard as I read it,
(24:32):
seems to say you've got to show you know, you've
got to show the email, where the getting where the
government official said take Brent Corp's post down, And it
seems like short of that, it's pretty difficult.
Speaker 5 (24:47):
Yeah.
Speaker 3 (24:47):
Feel free to respond to to anything that's been said.
Speaker 6 (24:49):
Yeah, I mean, the last thing I want to do
is take up our whole hour with Janine and me
arguing the record. So you know, the twenty two million
tweets versus four thousand and is a problem. The fabricated
quotes of Renee Darresta of targeting domestic speakers, of the
threat of quote legal consequences with the press. Secretary never
(25:11):
said you have problems with talking about SISA and how
the Election Integrity Partnership was actually set up. You have
problems with the word targeting being used. I would recommend
people take a look at Stanford's a Meekus brief in
the case where they get into this. And I'm sure
Janine probably has disagreements with what that brief says, but
(25:35):
I think that brief and certainly footnote four speak for themselves.
I don't think Justice Barrett would make that line lightly
now hopefully to say some things that Janine will agree with.
I think what we ultimately need to land on is
something between the broadest possible reading of the majority opinion
(25:56):
and the dissent, because at times the majority does I
mean they never say this explicitly, but they make it
sound like you need to be like named directly, and
that just can't, I can't be the standard. I mean,
that's highly problematic. They noted that the platforms had, you know,
independent incentives to moderate content, and I have thoughts on that,
(26:16):
but like I know this much, that cannot possibly be
like a get out of jail free card. It can't
be like, well, somewhere in the mix, we have an
incentive and and so you know, plaintiffs lose that can't
be right, Josh. You know, I think I think it's
an interesting question whether the majority agrees that there was
no violation. I mean, I don't think they ever say
(26:40):
that explicitly. That's certainly not my read of the justices
from the oral argument, but you're right, like they don't
they don't come in on that. I think ultimately we
have to kind of hope that like this opinion is.
Speaker 5 (26:54):
Not read broadly.
Speaker 6 (26:55):
They they their decision was shaped in part, I think
by how it was litigated and adjudicated below.
Speaker 5 (27:04):
Vulo being a few months before.
Speaker 6 (27:07):
Maybe we should take heart that, like you know, these
things are not a lot is left to be fought over.
And then the last thing I just want to insert
because I don't want to derail us. But I thought
Josh's discussion was interesting, and I'm wondering if he has
thoughts on whether maybe some of the conservative justices and
the majority were like spooked by Massachusetts versus EPA, seeing
(27:30):
like a decision that maybe all of us in the
room would be see as like a stretch of what
states can bring in and sue on and if that
maybe derailed them, And the reason I bring that up
in this answer is I think there just were a
lot of hydraulic pressures on this case that might have
shaped the majority opinion in ways that maybe they'll actually
change course of it in future decisions.
Speaker 5 (27:52):
Well, so, I've been thinking about this a lot, and
you know, there was a lot of coverage in the
past four years since Justice Barrett was nominated of like, oh,
this is the conservative court that's going to like roll
back everybody's rights, blah blah blah. Like that's what you're
getting from. That's what you're getting from, you know, the
cottage industry, niche press that is that appears to just
(28:16):
criticize the Supreme Court twenty four hours a day, right,
Like that's kind of that's the kind of coverage you're getting.
And in fact, what you get instead is, you know,
a group of justices who have, for you know, their
entire legal upbringing, been very, very very skeptical of standing.
And so I mean that's what you that's what you've
seen this year and last year and the year before
(28:37):
is just really just ratcheting up the standing requirements in
case after case after case. So Mass v. E.
Speaker 6 (28:45):
Pa.
Speaker 5 (28:46):
You know, pretty much most conservatives disagreed with that opinion.
Thought it was, you know, far beyond the outer reaches
of standing, and so it almost looks like they're kind
of trying to self overrule some of these opinions, like
I said, in the parent potry context, like they're just
the Spring Court is absolutely wrong to cite that that
decision and SNAP without recognizing that there are several different
(29:09):
decisions after Snap that completely undermined that opinion with respect
to parents patry. Spring Court is entirely wrong, and they're
ignoring that line of precedents there. But you look at
that end and then you know, same thing with the
Department of Commerce. I think Justice Alito is right. I
don't know how you can you know, the Department of
(29:29):
Commerce was unanimous with respect to the standing question. New
York could sue because there was a predictable effect that
the census question on the or the citizenship question on
the census was going to lead to reduce, you know,
a reduced number of individuals filling out the census. Well,
of course, it's a predictable effect that when you have
(29:50):
this kind of government pressure, there is going to be censorship.
And so I think the I think it's a similar
situation where the Spreme court is kind of trying to
cabin these other standing doctrines without saying so explicitly.
Speaker 1 (30:05):
Thank you for listening to this episode of SCO Discast.
SCO Discust is a project of the Federalist Society, a
not for profit educational organization of conservative and libertarian law students,
law professors, and lawyers, founded upon the principles that the
state exists to preserve freedom, that the separation of governmental
power is essential to our constitution, and that it is
(30:26):
emphatically the province and duty of the judiciary to say
what the law.
Speaker 3 (30:30):
Is, not what it should be.
Speaker 1 (30:32):
Don't forget to subscribe to our podcast series, including SCO
Discasts and Practice Group Podcast on iTunes or Google Play.
For an archive of past podcasts, as well as audio
and video of past Federalist Society events, please visit our
website at FEDSOC dot org slash multimedia. That's fed sooc
dot org slash multimedia.
Speaker 4 (30:59):
This has been a fed side wo audio production.
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