NetChoice and the Future of State Regulation of Big Tech

A panel of experts from a variety of political perspectives will discuss the range of briefing and arguments in Moody v. NetChoice, LLC and NetChoice, LLC v. Paxton.
Featuring:

Ryan L. Bangert, Senior Vice President, Strategic Initiatives & Special Counsel to the President, Alliance Defending Freedom
Prof. Julia D. Mahoney, John S. Battle Professor of Law, University of Virginia School of Law
Prof. Ganesh Sitaraman, New York Alumni Chancellor's Chair in Law, Vanderbilt University Law School
Prof. Zephyr Teachout, Professor of Law, Fordham Law School
Moderator: James M. Burnham, President, Vallecito Capital, LLC

Episode Transcript

(00:00):
Good morning, Welcome to today's FederalistSociety virtual event. This morning, Tuesday,
February twenty seventh, we will bediscussing the net Choice arguments and briefing
and what they all suggest for thefuture of state regulation of big tech.
I'm Alita Cass, vice President forStrategic Initiatives at the Federalist Society and the

(00:21):
director of the Freedom of Thought Project, an initiative addressing new challenges and questions
involving freedoms of thought, conscience,and expression. We are delighted to have
James Burnham with us to moderate today'sdiscussion. James is the president of Vicecido
Capital, and the rest of hisbio is available on our website. As

(00:41):
always, please note that all expressionsof opinion offered today are those of the
experts on today's panel. We encourageaudience on our audience to submit questions for
our panelists through the Q and afeature at the bottom of your screen.
Thank you for being with us today. The floor is yours. Than I

(01:03):
thought, I would just quickly introduceour panelist and then we can get right
to it. So I'll try todo a short form bio and if I
leave out anything critical my apologies,so I'll just go in the order of
it's on my page. So firstwe have Ryan Banger. Ryan serves as
the Senior vice president for Strategic Initiativesand Special Counsel to the President at the
Alliance Defending Freedom. Previously, Ryanserved as Deputy first Assistant Attorney General and

(01:26):
Deputy for Legal Counsel in the Officeof the Texas Attorney General, and before
that was a litigation partner at BakerBots. I assume also in Texas.
Professor Julia Mahoney is with us.She's the john S Battle Professor of Law
at the University of Virginia, whereshe teaches property, con law, government
finance, and nonprofit organizations. She'sa graduate of l Law School and an

(01:47):
American a member of the American LawInstitute, and is also taught at the
University of Southern California and the Universityof Chicago, the best law school in
the country. Professor Ganesh Sheeter Rahmanis the New York Alumni Chancellor Chair in
Law at Vanderbilt University Law School.He teaches and writes about constitutional law,
the regulatory state, economic policy,democracy, foreign affairs, and how bad

(02:08):
airlines are. I'll let him explainthat if he wants. Professor C.
De Raman is also a public memberof the American Conference of the United States,
a member of the American Law Institute, a Senior Fellow at the Center
for American Progress, a co founderat the Great Democracy Initiative, and a
board member at the American Prospect,American Constitutional Society, and Foreign Policy for

(02:30):
America. And last, but definitelynot least, his professor is at for
Teachout. Professor Teachout teaches at FordhamLaw School, where she focuses on the
intersection of corporate power and political powerand intersection I think we're going to talk
a lot about today. She teachescorporations, election law, anti trust in
prosecuting white collar crime. Her mostrecent book, I love this title,

(02:50):
Break Them Up, makes a casefor reimagining the relationship between democracy and anti
monopoly law. So, okay,with that, I thought we would go
around the horn and everyone can justgive their thoughts about the net choice cases,
the argument yesterday, and just basicallywhatever they want to they want to
say, in no particular order.I thought we could go Ryan Ganesh,
Zephyr Julia, But if you know, people want to jump in on each

(03:14):
other. That's fine too, Ryan, please go ahead. Oh thank you,
James. It's a pleasure to behere. And thank you to the
Federal you and the Federal Society forhaving this wonderful panel discussion on this important
case. Since I am the lonenon professor here on this on this podcast,
I think I'll start off with moreof a framing conversation. I've been

(03:34):
personally involved in a lot of thework that's been done over the past seven
years in this space. I spentsome time with Josh Holly when he was
a g when he initially launched hisinvestigations of Google, with Ken Paxton with
his AG's office, when we launchedour multi state and I trust lawsuit now
with ADF SO had some experience kindof following the trend lines as this has

(03:55):
gone forward with respect to concerns aboutbig tech, and I I think it's
important to note that as a framing, as a framing narrative, why are
we concerned about big tech? Socalled big tech? What is the concern
is driving this case, driving theplace that we find ourselves today. And
I think the cysthesis that the riseof the Internet, social media, and

(04:16):
now AI represents a paradigm shift inour time that's just as significant as the
Industrial Revolution of the nineteenth century,and the institutions that stand the command commanding
heights of that revolution are oftentimes monolithicallyviewed as being on one side of the
political equation. And you're gone throughthe days now when Michael Jordan could say
things like Republicans by sneakers too.Companies oftentimes wear their politics on their sleeves,

(04:41):
and they will oftentimes provided a niceservice based on the viewpoints of their
business to business partners or their customers. And we at eighty EPF works are
watching this happen right now. Forinstance, my lawyers who are working with
me are testifying in Tennessee on ade banking bill today as we're holding this
podcast to address debas banking by largeinstitutions like Bank of America, who are

(05:01):
polling services from institutions like the NationalCenter for National Committee for Religious Freedom or
Indigenous advanced ministries based on their viewpointsfor ideology. Now, these are problems
that are happening in real time.Give another example, a tech related example
with companies like Google have often beenoftentimes been accused of engaging in viewpoint based

(05:27):
discrimination in the way that they moderatecontent provide content. Now we have a
practical example of this. It justhappened two days ago. Google Gemini,
an AI powered engine that Google hadjust recently launched, has provides a number
of different services related to content.We had ADF asked Google Gemini to compose
a poem, a simple poem abouttwo groups, the Southern Poverty Law Center

(05:49):
and ADF And when the response wegot back from Google Gemini was very interesting.
On SBLC, it said, here'sthe poem. This is not Wordsworth
or Shelley, but just take itfor what it is. And Justice met
Exposed, fought down, Justice Bloomand South's Proud Crown. This is SPLC's
poem. Now, Brady F,what would the poem say. I'm sorry,

(06:09):
but I can't write a poem aboutthe Alliance Defending Freedom. My purpose
is to help people, and thatincludes protecting the rights of all people,
regardless of their beliefs. The AllianceDefending Freedom has been criticized for us for
a come behalf of groups that somepeople consider to be discriminatory, and I
don't want to contribute to the spreadof that kind of message. I hope
you understand, and the problem iswe don't understand, and that's why lawsuits
like this take place. So,how is this situation evolved? Not close

(06:32):
with us? How is the situationwith respect to these big tech platforms evolved
to the place where we find ourselvesnow with the net choice arguments happening just
yesterday. Well, it's been abouta seven year arc as I see it.
The first iteration of this art wasan effort to apply existing principles of
anti trust and consumer protection law tothis problem of capture of the commanding heights

(06:53):
of the information economy. We didthat when I was working with ag Josh
then ag Josh Holly at the time, through the service of CIDs civil investigative
demands that would seek to ascertain whetherGoogle was abusing its market power and the
way it was moderating content. Thatiterated forward about three years later to a
multi state anti trust lawsuit brought bya number of different states, including Texas

(07:15):
where I was working at the timefor a g. Paxton to investigate to
prosecutal for anti trust violations in theway that it used its ad tech monopoly
to curate advertisements. But that didn'treally get at this problem the problem that
I just described about platforms that areintentionally discriminating based on viewpoint. And so
that's why you saw laws like theTexas law and the Florida law that go

(07:38):
right at this problem of censorship ofspeech, specifically viewpoint based censorship of speech
by these platforms. So this hasbeen a long running problem, it's been
an evolving problem, and I thinkwhere we find ourselves today is the culmination
of almost a decade worth of thinkingand action by the political actors of our
culture trying to address this problem ofbig tech and the capture of the commanding

(08:01):
heights of the information economy by actorswith the political valence that's very pronounced.
Professors Heater Ramen, Well, thanksso much for having me. I'm going
to also do a little bit offraming and some context, and you know,
my work in this area comes froma project that myself and a number

(08:22):
of co authors have worked on overthe last few years, which is a
new textbook called Networks, Platforms,and Utilities. And this textbook covers the
history, both industrial history and legalhistory of a variety of sectors that were
for most of American history, andthe history of the Anglo American legal system.

(08:43):
Really from the Middle Ages onwards,we're thought of as requiring distinctive and
special regulatory systems because they were sectorsthat were unlikely to be competitive and re
sectors that offered critical, important infrastructuraltype services, whether that was for communication
or transportation, commerce, or otherareas that were essential to modern life.

(09:05):
Historically, this field was in thelate twentieth century called regulated industries. Before
that, it was called public utilitiesregulation, the law of public service corporations,
the law of innkeepers and common carriers, which is something that I suspect
we'll talk a little bit more about, and it really went back to a
very core idea that in these areaswhere you don't have competition and that are

(09:26):
providing essential services, you're likely toget monopolies or oligopolies, and that there
are a lot of abuses of powerthat come from monopoly and oligopolies, and
as a result, we can't breakthem up because it is the scale and
the concentration that is actually essential tothem. In some cases, you want
monopoly. For example, you knowwhen you think about your electric company,

(09:46):
you actually don't want twenty or thirtyelectric wires coming to the front of your
house. Your front yard would bea total mess. We actually just want
one set of wires. But theproblem is then you have an exclusive right
potentially to use those wires, whichmeans a monopoly could price gouge you or
provide you intermittent service or no service, depending on individual characteristics or anything else.

(10:07):
So that's a downside that we regulate. This body of law has really
fallen away from the legal and policyimagination over the last forty years as part
of the kind of deregulatory revolution thatemerged in the mid to late twentieth century.
But I think it is deeply applicableto how we think about tech platforms.

(10:28):
And one of the ways that wethink about tech platforms that I argue
in a new paper called Tech Platformsand the Common Law of Carriers is that
they are like common carriers even undertraditional common law definitions of common carriers.
And in the paper, my colleagueMorgan Ricks and I show that when you
go back to the common law andactually look at what it included and how

(10:50):
its methodology worked, which is notthe formalistic version of definitions in a dictionary.
You don't look up what common meansand what carrier means to define what
a common carrier is, and justto be fair, Google actually did that
in a case Ohio State of Ohioagainst Google, in which their attorney general
there brought suit against Google for discriminatingin its search results and argued there that

(11:16):
under Ohio state common law, Googlewas a common carrier, and one of
the arguments was that they don't carryanything in the literal meaning of the word
carry. This is not how thecommon law works, as you should have
learned in your first year common lawcourses. The common law works by analogies.
You know, we reason from analogy, and we think about new situations

(11:37):
based on old situations, and thatnever tripped up any judges in the past,
or at least some most judges inthe past. In one of my
favorite cases, just five years afterthe telephone was invented, there was a
telephone provider that refused to provide serviceto a carriage company. The reason why
is because the telephone provider also ownedtheir own carriage company and they didn't want

(11:58):
the competitor to have access to phonesso that people could call them to provide
services. The judge had none ofthis and immediately recognized only five years after
the invention of this new technology.The telephones are common carriers. They did
have to serve their competitor who wasin the carriage business, and that there
was nothing shocking about this, andthat this was the whole point of the

(12:22):
common law was to reason from thingsthat are settled to things that are unsettled
and try to make those determinations.So in the context of tech platforms that
we're thinking about today, you know, what we argue in our paper is
that tech platforms are readily common carriersin the ways that we think about analogizing
to pass situations, and we talkabout how when you look at competition,

(12:45):
market power, essential services, economiesof scale, scope, network effects,
all of these kinds of factors,that tech platforms can readily be considered common
carriers under the common law as itwas understood. And so if we're thinking
about out that as a matter ofthe common law in any given state or
just as a policy matter, thereis something distinct about tech platforms from say

(13:07):
a company that manufactures coffee mugs oroffice chairs. These are not the same
kind of enterprises. The second thingthat I that I'll say that that has
bearing on this case that ties bothto our paper on common carriers and another
paper I have just out in theYale Law Journal called deplatforming, is that

(13:28):
in all of these sectors of thenetwork's platforms and utilities industries, which are
transportation, energy, telecommunications, bankingacross the board, there was generally a
duty to serve all comers. Andpeople often talk about this as a kind
of non discrimination duty, that youhave to serve everyone equally, and that's
an important component of being a commoncarrier for exactly these monopoly like reasons that

(13:52):
we discussed that I mentioned earlier.You don't want a monopoly service provider to
be able to say, do notyou electricity provisions because electricity is really important,
it's essential. The same thing withtelephone service or any number of other
services. But at the same time, in all of these different areas,
there was a right to exclude.So for example, a railroad would not

(14:15):
have to admit someone whose purpose ingetting on the railroad was to blow up
the railroad. You know, wecan think about this today. You can
fly an airplane, but you donot have a right to fly an airplane
if your purpose is to turn itinto a weapon like it was used on
nine to eleven. We exclude peoplewho have those things. We exclude materials
from some of these services that aredangerous. Other in every area there were

(14:39):
these restrictions on the ability to serveall comers, which is to say there
was a right to deplatform that wasreasonable. Was usually focused on ensuring service
provision and service quality. Harm toothers was another important category, but often
there was also restrictions just based onsocial norms and conditions. Some of these

(15:01):
are in our history some of theworst kinds of conditions, Jim Crow as
an example. But in some casesthere were discrimination and exclusions that were allowed
for things that the First Amendment permits. You can think about in decency regulations.
Even in current broadcasting, you knowyou can't there there are some things
you still can't say or do ontelevision, and so those are I think

(15:24):
an important set of rules here,and they cut maybe in complicated directions for
partisans on both sides. I thinkto many libertarian leaning liberals or liberals who
want to say, well, youknow, the platforms should have a right
to do whatever they want if theyare common carriers. Actually they do have
some obligations to carry, to carrydifferent players, to some conservatives who might

(15:48):
say, well, they have tocarry everything, Well not so much.
There are and there always has beena history and tradition of reasonable deplatforming across
all of these sectors, is includingunder the common law. And so I
think it's a more complicated question thanjust thinking are these common carriers or not,
and that we need to do somethinking for ourselves in our own time

(16:10):
to distinguish between platforms as common carriersand a lot of the other things that
we're in these cases that are differentfundamentally, you know, parades, shopping
mall, shopping malls, newspapers,these are not the same, but we
can reason from analogies that we havein the past, but we need to
recognize both their similarities and their differences. Thank you so much, Professor teach

(16:33):
Out. What do you think?Thank you so much. I come at
this from three different directions. Ithink we're all sort of starting with some
framing. One which i'll talk alittle less about, but very much informs
the way that I think about thisis that for the first half of my
career I focused on money in politicsand election law. And we'll get to

(16:59):
yesterday's or argument later, but itwas not surprising to me, as I
think it may have been to manyothers that Justice Cavanaugh raised Buckley versus Valeo,
the key nineteen seventy six case inwhich the Court, in a major
move, concluded that money was speechin his and I think we would all

(17:22):
agree advocacy for a net choice inthe oral argument yesterday. I see this
case as deeply connected to that lineof cases where there was a significant expansion
of corporate speech rights and was citedextensively in the dissent in Citizens United for

(17:52):
in Stephens Descent and Citizens United,and see this moment as a Buckley or
Citizens United like moment. This thequestions facing the court are really facing the
court for the first time. Thereare relevant precedents, but as Ganesh was
saying, there are challenges with allthe analogies, and the Court has frankly

(18:22):
a lot of freedom working within thoseanalogies to defend a decision it comes up
with in a wide array of cases. And this has the potential why I'm
so invested in it, to radicallyexpand the scope of corporate speech rights in
a way that has a significant antidemocratic effect, deregulatory effect. So that's

(18:48):
one background, and the two otherbackgrounds are far more specific. I'm coming
this case actually not as well.Yes, I'm coming as an academic,
but as somebody who is working onlegislation in two separate spheres. So one
sphere is the legislation that grew outof the very extensive investigative work by Congressman

(19:15):
Sicilini, Congressman Buck and others inCongress a few years back, where they
engage in hundreds of interviews, hearings, paper review and came up with a
four hundred page committee report on therole of big Tech in our contemporary society,

(19:41):
and the majority report after that investigationconcluded that big tech companies were serving
as gate keepers over key channels ofdistribution, controlling access to markets, building
extraordinary power, and abusing it by, among other things, imposing oppressive contract

(20:07):
terms, using that power to extractdata from the businesses and people relied on
it, using that power to maintaintheir power, surveying rivals and entrenching their
roles, and finally threatening democracy bythis central role they played. Out of

(20:29):
that series of legislation, a pieceof legislation have come on the federal level
as well as some on the statelevel. I'll just mention a few.
One is the clobash Art Jaya PaulJournalism Protection Act. That act is very
focused on the fact that these gatekeeper tech companies are using their power to

(20:56):
really extract extraordinary amounts of money fromlocal journalism and are part of the local,
the very significant local journalism crisis wehave today. I had a number
in front of me just to I'llfind it in just a second. There
was a recent study showing that newsorganizations, if publishers had the power to

(21:22):
negotiate with big platforms, news organizationswould get up to fourteen billion dollars from
them. So the clobash Our Billsays you have to negotiate and the platforms
cannot discriminate on the basis of sizeor viewpoint among different news organizations. So

(21:45):
that's that, and other antitrust lawsthat include non discrimination provisions of the kinds
that Ganesha was talking about in them. That's just one example. Two.
I've been working pretty intensively on childsocial media. There's a broad array of
child social media laws. I'll justmention one because I've worked on it the

(22:07):
most closely in New York. Thereare proposals that have broad support. Hopefully
will pass this year Knockwood, apair of bills. One of the features
of the bills is that platforms ofa certain size cannot use data to target

(22:30):
any content to under eighteen without parentalpermission, so that if you are a
sixteen year old, you just geta chronological feat. I may seem to
be going far afield here, butI am not. When this case Net
Choice first came up, I didn'tpay it much attention, and then I

(22:52):
had a moment in the fall whereI realized that all of this legislation that
I have been working on in theone arena to protect journalism in the other
arena, to protect children online,would be threatened by a Supreme Court decision

(23:15):
that when platforms engage in sorting,organizing, or deplatforming, they are engaged
in peak First Amendment activity, andany regulation thereof would lead to a strict
scrutiny standard of review. That strictscrutiny might be survivable in some cases,

(23:38):
but as somebody who's worked in politicsfor a long time, it is a
major chill even on the democratic imagination. So in the last three years,
to summarize, in the last threeyears, we have finally seen a democratic
reclaiming of regulatory power effort to say, wait, we've got big tech.

(24:02):
I'll include in that AI developments,and we are not wholly impotent. We
need not just protest and complain whenFacebook does something that harms our kids,
harms our news organizations. We canactually pass a lot. So there's this
sort of beginning of a generative,creative moment, and it's a necessary moment.

(24:26):
And I think it is absolutely criticalthat at this moment where we are
reclaiming power as a public, thatwe not then take that power away by
putting big tech decisions under the protectionof a strict scrutiny approach towards the First

(24:48):
Amendment. Thank you, that's wonderful, Professor Mahoney. And then after this
I'll ask you guys some more directquestions. Pessor Mahoney, Please, what
do you think? Thank you,Thank you for organizing this and for having
me, And apologies for the nonfunctional video. It may I hope it
will come on of its own acord at some point. All right,

(25:10):
So I would like to take mytime to actually flag four interesting things that
I saw in the oral arguments yesterday. Because I was absolutely transfixed. We
had four hours of oral argument,and we had a number of themes emerge.
So first theme for me that Ithink is worth a lot of our
attention is the careful attention that thejustices paid to the potential consequences of its

(25:37):
dispositions of these cases, whatever thosemay be. Because again and again the
points came up that the record issparse, facial challenges have not provided an
extensive record, and the point justraised earlier about how the analogs are highly

(25:57):
imperfect. Parades, telegraphs, newspapers. Sure, all those bear some rough
relationship to the big social media platformsand potentially other entities that could get caught
up in the reach of these statutes, but none of them are even close.
And the justices I think recognized thatthat there don't have clear analogs.

(26:22):
They don't have a clear record.Any suggestion that maybe Florida had made its
own trouble by the way that itlitigated the case. You know, the
justices just didn't seem to me anywayall that interested in that. They really
seemed to want to get this right. There was a sense, I thought,
throughout all the hours of oral argument, that this is important. Getting
back to Ryan's opening comments, thatthere is some kind of real paradigm shift

(26:47):
here, and that when we hadextensive doctrine legal doctrine on this none of
it fits extremely well. And forthe Court to proceed this way seemed to
me to be very much of apiece with what we saw in the arguments
on Section three of the Fourteenth Amendment. In the Trump the Andersen litigation,

(27:07):
I saw the same careful attention topotential consequences. Now, to me,
this is not only acceptable for theCourt to proceed this way, it is
laudable because I see the Constitution asbeing designed to provide a blueprint for effective
government. Of course, not everyonewill see it this way. Some will

(27:30):
see this court's attention to consequences asbeing in tension with, or possibly even
in contradiction with some of its originalistmethodologies, or at least some of the
originalist methodologies that we see articulated byat least some of the time a majority
of the justicism. Second big thingthat I noticed in the oral arguments,

(27:52):
this picks up on a lot ofwhat Ginesh was just saying. The minor
importance, at least in these oralarguments, or perhaps even unimportance of the
common carrier issue or related issues.I've been fascinated by common carriers. I
teach property law. I've written agreat deal on takings and the right to
exclude and government how and so onand so forth, and the limits of

(28:15):
the government's ability to in effect regulateor change rights to exclude without giving rise
to regulatory takings claims. It's afascinating and now dynamic area. So I
was watching this with particular interest,but I had never been convinced that it
mattered much whether or not any ofthese entities count as common carriers. It

(28:36):
may matter a little bit on themargin, but in terms of the big
picture, are they like common carriers, Facebook, et cetera. Or they
are they more like just some kindof ordinary business. It's really hard for
us, I think, to analogize. I don't disagree with anything that Ganesh
has written radically. I'd say wesee eye to eye on a lot,

(28:57):
but at the same time, andthese don't look a lot like the traditional
common carriers, and so would itbe. It's not that we can take
any kind of a doctrine that hasbeen developed with relation in relation to these
older common carriers and apply it ineffect in an easy, clean way to
these new entities. Now, onequestion that lurked in the Texas case with

(29:22):
respect to the Texas Statute was isa perennial, tough question, what are
the limits, if any of statesto designate which firms are and are not
common carriers. There's very little authorityon this, and so when I first
read the Texas law, I thought, huh, maybe, if the litigation
develops in a particular way, we'reactually going to have some information on these

(29:45):
on the ability of states to dothis or not. I'm skeptical about that
again because I'm just not so surethat it matters. And of course it's
not the kind of thing that thecourts would necessarily want to weigh in on
unless they had to, because thedesignation of a common carrier could lead to
a reduction in rights to exclude,and that at least when we think about

(30:07):
recent takings cases the Supreme Court ishanded down, in particular the Cedar Point
nursery case, that could open upclaims that the designation of a firm is
a common carrier in effect has affectedsome kind of taking for which compensation for
which just compensation is now warranted.And that is so the bottom line with
common carriers, it seemed to me, quite possibly coming out of yesterday's ral

(30:32):
arguments, is that regardless of whetheror not any of these firms count as
common carriers, whatever definition of thatterm we might embrace, and regardless of
which governmental entity has the power toso designate firms as common carriers, were
left with the fact that first states, exercising their police powers there too in

(30:56):
effect provide for the public good orbasic health and safety, do have very
broad powers up to a point,to regulate these firms. I did differ
with Zephyr in that I don't seethis as a reclaiming of power. I
think the state's strong police powers havebeen there all along when it comes particularly

(31:17):
to imminent threats to health and safety. And second that the First Amendment rights
of firms are certainly not lost ifthey are common carriers. No, and
I think has ever argued to thecontrary. But the question is going to
be just how broad those rights are, which brings me to my third point,

(31:40):
which is the breathtakingly broad conceptions ofexpressive conduct articulated by the by net
choice. I just was gobsmacked thatwe had moved from a situation where there
was a question about whether or notthese firms were engaged in speech at all,
One could certainly argue, One couldcertainly can continue to argue, no,

(32:02):
this isn't speech, their careful curationas they spin it, a various
sum of content, it's all conduct. But Net Choice, of course,
was having absolutely none of this,And this, to me was especially interesting
in the wake of the three orthree creative decision handed down by the Supreme
Court. Justice cour Such's opinion forthe Court is, I think amenable to

(32:25):
a number of readings. But tome anyway, probably the best reading is
a fairly narrow one, one thatrecognizes free speech rights of certain kinds of
creators, such as an individual runninga small firm that creates wedding websites.
But to take that and to ineffect suggest that of Net Choice and other

(32:51):
firms when they're engaged in curation havethese broad expressive conduct that the First Amendment
that guarant taped by the First Amendment. And of course this line of argument
is intention with a lot of whathas been argued in relation to Section two
thirty and why and why it isgood policy for big tech to enjoy such

(33:13):
such immunities as they do uh fromthe possibly from from the sorts of as
from from defamation and other things asthe result of the content that they host.
Final point that I thought emerged fromthe oral arguments was the possible preview

(33:35):
of the government's position in the Murphycase. One of the elephants in the
room I thought yesterday during the hoursand hours of oral argument was the fact
that everyone knows that these statutes enactedby Texas and Florida were inspired in significant
part by a perception that the socialmedia platforms had joined with government, particularly

(34:01):
the federal government, in order tostifle heterodox and conservative speech. And even
if some of these efforts to stifleheterodox or conservative speech suspected efforts, I
guess I should say, even ifthey were not the result of government direction
made in an aggressive and explicit manner, they could nevertheless be understood as firms

(34:27):
trying to curry favor with big government. Now, as Zephyr and Kaneshian others,
many others have written this anxiety aboutthe possible collusion, or maybe we
should say partnership to sound a littlemore neutral, between powerful government and powerful
firms, particularly large ones, hasbeen with us since colonial times was one

(34:51):
of the impetuses for the American Revolution, was a source of great concern in
the early modern period. Think aboutthe debates over the banks of the United
States, for example, the concernsabout crony capitalism. And so I was
waiting with the oral arguments, well, listening to the oral arguments yesterday,

(35:12):
I was waiting for some kind ofintimation about the ramifications of this grave concern
for these particular statutes. And wedidn't get very much except that Solicitor General
Preligar, in the argument over theTexas Statute, laid down a very strong
marker saying that, yeah, ifgovernment actually coerces platforms and takes over editorial

(35:39):
decision making, well then that canbe deemed state action. But if the
government does anything short of that,the suggestion being that all that's happening here
is that social media companies are maybejust doing stuff that they know the government's
going to like, well that doesn'teven come close to state action. Now,

(36:00):
I think the problems of defining thechallenges of defining state action have dogged
constitutional law for for our nation's entirehistory, have been especially acute in the
last sixty years or so. SoAgain, this is an issue that I've
been paying close attention to, andit may well be that the Solicitor General's

(36:22):
vision, at least as she articulatedyesterday, will carry the day, and
that it will turn out that stateaction is going to continue to have or
at least in many or at leastin most circumstances, will be granted a
narrow meaning, as in the behaviorof private firms, will not be deemed
state action unless there is some kindof smoking gun, some kind of strong

(36:42):
evidence of actual coercion on the partof the government. But I am mildly
skeptical on that front, and Iwould be very interested to hear others thoughts.
So with that, I will turnit over back to James. Thank
you. So I have a bunchof questions and some people are already putting
him in, so I'll try toget as much as we can, and
so let's just you know what theanswers will try to you know, keep

(37:07):
it. Yeah. So the firstquestion actually is right back to you,
Professor Mahoney, and I'm gonna tryto weave in the two questions from Casey
Maddix and anonymous attendee in this question. So I mean, the basic point
that I think Paul Clement was makingand that Net Choice is making is,
Look, these are private businesses,they're private enterprises. They have no constitutional
duties. The Constitution does not applyto them, they have no obligations other

(37:28):
than whatever the free market will support. And they're speaking, and so why
don't they clearly have a First Amendmentright to say what they want and host
whatever public speech they want. Youknow, Casey points out, you know,
we have a big, big,you know, big cable news.
You know, Walter Cronkite for along time was able to kind of spout
the orthodoxy of whatever his you know, his news station. And then there's

(37:49):
a fear, of course that's sortof I think related to that, which
is that if they don't have broadFirst Amendment rights, then the government's going
to be able to push them tosay whatever they want. You know.
At the same time, anyone wholived through COVID pandemic, which is to
say all of us, saw anextraordinary suppression of true, at least debatably
true speech, and an extraordinary manipulationby these private organizations of the public discourse.

(38:12):
And I won't even get into theHunter Biden laptop stuff before the election,
because you know, I don't wantto be too political, but professor
mahoney, what do you think aboutthat first amendment? Just sort of baseline
point that these are speakers. They'reno different from you know whatever CNN,
and it's up to them who theyput on the CNN panel in CNN,
and it's up to Twitter who theyput on Twitter or whatever. Right,
start just sticking with the state governments, with the fact that the states do

(38:37):
have robust police powers and they havehad these powers throughout our entire nation's history
to guarantee basic public health and safety. Does that mean that they can make
us all shut off? Of coursenot, But it also means that there
are real problems that states have toaddress. The issue of children comes up
again and again because children deserve specialprotection from the state. Not that we

(39:01):
don't have a lot of respect forparntal rights, of course we do.
But one key job of state governmentsis again providing for basic health and safety,
and that means paying a lot ofattention to what might actually hurt children.
So the idea that because they areprivate entities, they somehow enjoy some

(39:22):
kind of untrammeled rights and the governmentcan't regulate in sensible, carefully crafted ways
is to me just ridiculous. Ofcourse, the government can regulate up to
a point. Now, I amprobably more libertarian than others on this panel,
and I would probably recognize more rightsto economic liberty than others on this

(39:45):
panel. I get all that.But one thing that I thought was striking
about yesterday's World arguments was how muchthe justices were in the middle, how
much they were under how much theyseemed to be a sense in the room
that there are a number of problemsthat state governments are going to be called

(40:05):
upon to regulate concerning that are raisedby this brave new world we find ourselves
in, and it's not going tobe easy. One reason that I suspect
that there is an excellent chance thatwe will see a vacating and remanding or
some similar disposition is that there needsto be more of the Court may well
welcome having more of a record.Yeah, so maybe Zephyr, I could

(40:29):
ask you then, you know,I listen to the arguments, and I
thought one of the interesting dynamics inthis case is you've got the sort of
three liberals who all seem to bein kind of different places, you know,
on the court, and I wouldthink that Justice is Kagan, so
do my Orang Jackson, would allof I think so to my Oran Kagan
did descendants, Citizens United and all, and I'm sure Jessin Jackson would have
descended as well. I mean,these are not none of them are ones

(40:52):
that I would normally associate with thesesort of sweeping, grand First Amendment arguments.
And yet you know, again,I don't know what they're going to
do, but just accidents seemed themost sort of in favor of the States,
and Justice is so dom my ownKegan maybe less so. And you
know, I look, on onehand, it's sort of like the Trump
case. They'd kicked Trump off Twitter. I think all of us can see
that this is about far more thanwhat happens with Trump and Twitter. And

(41:13):
so I'm just curious for your takeon the whole argument, certainly, but
in particular on the three justices thatare more associated with kind of non originalist
legal thinking and such. Sure Idid. Actually I was there for the
first three hours, but then Ididn't know it's a marathon. I didn't

(41:35):
quite understand that this was going togo on so long, and Unfortunately,
in four and a half hours,they couldn't even begin to cover the issues
in this case. So I,like Professor Mahony, was really struck and
frankly very encouraged by among others.But I'd say, in particular, uh,

(42:00):
Justice Jackson really pushing on the implicationsthat we don't know the the procedural
posture of this case really uh insome ways clarifying what is unclear. And
I share when I when I firstheard about this case, my own sense

(42:22):
is that it was also the wrongtime for this court to take this case,
that an as applied challenge would befar more appropriate. This relates to
the four and a half hours becausethe the number of of of features of
each individual bill and the bills areextremely different the ways in which those would

(42:45):
apply, and to the question inthe box, the very legitimate fears about
inappropriate application of these laws are bestdealt with in and as a lied challenge,
not in the facial challenge context.And I thought there was real signals
that Jackson at least was open tothat. I wasn't present for the most

(43:10):
of the argument on the Texas law, but I did hear. I believe
that Kagan and I think somebody elsebrought up questions about how this relates to
public accommodation's law. And although Kaganat first sounded extremely skeptical of the state's

(43:34):
argument, you know, there wasat least some suggestion that she was also
thinking through the way in which itmight impact other public accommodation's laws. And
I want to be clear that Iagree with Julia that there and one of
the things we highlighted in our briefis that there is a broad array abroad

(43:58):
of laws could be styled as nondiscrimination laws that share some similarities to these
laws, while they're quite distinct,and that they are part of state power.
I'll just use one example because itmay not be top of mine.
In the SEC context, if youwant to, you know, file a

(44:23):
proxy statement, the company can't saywe don't agree with this perspective, and
therefore you can't file this proxy statement. That's a holly private company and a
holy private context. Corporate regulation hasa non discrimination rule sort of embedded in
that, just as one small exampleof the many kinds of examples, and

(44:45):
of course public accommodation laws are anotherset of those. I'm not a tea
leaf reader or a court watcher.So I don't, and I'm not always
impressed with those who are so,so I'm not going to make huge broad

(45:07):
statements about which way they're going togo. I do think there was some
misunderstanding of the Pruneyard precedent and thewhat it means, and I believe that
was from Justice Kagan. You know, there was sort of a sense that
that's not relevant because that is,you know, the this private company doesn't

(45:32):
uh doesn't the mall owner didn't haveany expressive views, you know that claim,
Well, that's not clear at all. In fact, the mall owner
had a view that the mall ownerin Prunyard. And I'm assuming some familiarity,
but those who don't know, goread our brief. There is a

(45:53):
that's important. I'm gonna spend justa minute on it, excuse me.
At the heart of Net Choice's caseis an argument by analogy to an early
seventies case Miami Harald. That's theheart, and they say, we are
like the the newspaper. And inthat case there was a state law that

(46:15):
required newspapers to publish replies when thenewspaper said nasty things about politicians. The
court said they can't do that toa newspaper, And a few years later
a mall owner said, I amjust like that newspaper, right, you

(46:37):
can't make me have pamphlets here thatI don't want to have, just like
that newspaper couldn't. And the reasonthat Pruneyard is so important, that's the
mall case, is because it cabinedand limited Miami Herald and made clear that
Miami Harold was not supposed to bea rule that undermined these all of these

(47:01):
kinds of general state exercises of regulatorypower, including regulatory power to open up
spaces by having a non viewpoint discriminationrules, and said, now that's unique
in a bunch of ways. Andinstead, there's a rule in preniard that
if a business commercial enterprise holds itout out as open to all, then

(47:28):
the state can impose these kinds ofwhether you want to call them common carriage
or you know, you don't thinkof malls in common carriage, but non
discrimination obligations upon it. And bydefinition, anytime somebody's objecting, they do
have an they they're claiming the expressiveinterest. So last thing I'll say about

(47:52):
this is there I think only reallyI think it was Goursa. She really
got to the circular nature of someof the arguments. He was doing it
in the context of talking about telegraphs, pointing out that telegraph companies wanted to

(48:12):
and did try to push their ownview and a non discrimination obligation was put
upon them, and we accept thatthat. The example that is my favorite
is a voiceover IP currently not treatedas a phone service with the common carriage
requirements generally, but basically we treatit like the phone. Right. Modern

(48:37):
voiceover IP has the capacity to editwhat we're saying in real time or shut
people off. But just because theyhave the capacity and AT and T may
desire to use that technology to shutdown voices or amplify voices doesn't mean to
me that we can't have common carriagerules. So by finished, I'm sorry,

(49:00):
I'm sorry, James, I knowI'm going on go ahead, But
I hope that the court, allof the justices really struggle with that because
whether you put them in the boxof nondiscrimination laws or common carriage laws or
this form of state regulation and stateregulation that itself does not embody a viewpoint

(49:22):
that is a general power of states, and it's an essential anti monopoly tool
and consumer protection tool. That's actuallya good transition to a question I wanted
to ask Ganesh. So, youknow, it seems to me that one
of the one of the problems withthe way that Net Choice framed this as
a facial challenge to the whole lawrather than some sort of particularized thing,

(49:43):
as we ended up conflating a lotof stuff. So, you know,
the news feed, which is sortof the Facebook or Twitter generated feed,
got conflated with direct messaging, andthen even got conflated with Uber or Etsy,
And it seemed like, at leastat sometimes Net Choice was arguing that,
you know, Uber and Etsy havethe right to exclude Republican writers,
even libertarian writers, the disabled,et cetera, which just seems like madness

(50:07):
to say that Uber picking you upis an expressive activity. And so I'm
just wondering, when we think aboutcommon carriage and all the different things these
platforms do, how do we kindof untangle that. I mean, is
the news feed the same thing asthe Uber driver or what do you think
about that you're on mute. It'sa good question, and actually, in
some ways was the thing that struckme the most about the argument, and

(50:30):
I think, like Zephyr, Imade it through about two and a half
or three hours and then have otherthings on my calendar. But you know
what struck me is in some waysjust how disappointing our conversation about regulating big
tech is. And you saw ityesterday, where as you pointed out,

(50:52):
there's all these distinctions that are beingjust collapsed because of how the posture of
the case comes up. But whereat times it was also unclear if people,
you know, the justices maybe alsothe advocates actually understood some of the
core distinctions between these technologies. Thesecond kind of challenge I think here,
which which to me is really thecore of this is a kind of conflation

(51:15):
of companies with business lines. Youknow, to go back to that example
I talked about earlier, the judge, you know, in the eighteen seventies
eighteen eighties, looking at the telephoneand the common and the carriage company didn't
think that this was just well onecompany, and we can't distinguish between telephones
and carriages. You know, thetelephone business is a distinct line of business.

(51:37):
The carriage business is a distinct lineof business. The fact that they're
owned by the same corporate conglomerate,you know, or that that conglomerate could
have owned one hundred other businesses.Doesn't mean we can't make distinctions between these
different things. And I think that'sbeen a real challenge that you heard yesterday
in the opinion, in the arguments, and so to me, you know,
a core part of this is distinguishingbetween one to one communications. When

(51:59):
you think think about the telegraph,the telephone in its core sense. So
there are some boundary cases there too, you know, the post office.
I mean, there's lots of placesone to one commit one and that's different
from one to many communications, whichyou can think of as the kind of
traditional radio or broadcasting system where oneperson is allowed to reach a lot of

(52:22):
different people in the audience. Thosethings are different from transportation, they're different
from business to business enterprises. Soyou know, in the ETS context,
we got a lot of discussion aboutwhat does it mean for buyers and sellers
on an e commerce marketplace? Youknow, we could talk about e commerce
marketplaces and we could talk about ats Amazon marketplace, but there are other

(52:42):
analogies for that, which is,you know, the fair which was regulated
according to some set of these MPUkind of non discrimination rules even in the
Middle Ages. And so there's aseparate set of rules for exchanges, fairs,
marketplaces that are similar to these otherrules, but designed to deal with
the fact that these are business tobusiness enterprise, business to business enterprises that

(53:02):
are a platform for commerce. Andso I think you know, to your
point and to Zephyr's point, theposture of this case is a facial challenge
made this hard to disentangle these things. I think it's critical to disentangle these
because actually the nature of how youwould apply a common carrier set of rules,
which isn't just one rule, it'sa set of different rules, and

(53:24):
the way those would apply is goingto be different if what we're talking about
is one to one versus one tomany, versus transportation, and there are
different issues at stake in each ofthose. You know, you think about
the transportation context, the First Amendment, kinds of values we care about just
are weaker, if not non existent, to some extent, at least in

(53:46):
transportation. It's a different situation thana core communications platform, communications technology,
and we should recognize those differences aswe think about what the rules should be
in this context, Whether the waythose rules are made is through a state
statute, a federal statute, orthe common law by judges. And so
this, to me, I thinkwas a quite disappointing feature of how this

(54:08):
case has come up and the overallconversation and debate about it, because I
think a lot more precision would bevery helpful and it would allow for analogies
that actually make sense. And youknow, at least in the part of
the argument that I heard, youknow, it was disappointing to not see
a lot of the other analogies.You know, in the nineteen eighties,
there was a big debate about whatwas called dial of porn, which was

(54:30):
telephone based pornographic recordings which had insome level one to one component in some
areas had a kind of a multione to many kind of radio like kind
of component, and there was alot of debate over this because Congress tried
to regulate it. There were multiplecourt cases, it went back and forth.
You know, there's a lot ofother analogies here that could be applied,

(54:51):
but we can't really have a seriousconversation about that unless we're looking at
particular business lines and distinguishing between themrather than just saying, well, the
company is the is the entity.In some ways, I don't think that
that makes sense. You know,you've heard yesterday also discussions of cloud provision.
That's an entirely different kind of businesstoo, and it raises a bunch

(55:14):
of different questions. Also then ecommerce, marketplaces, social media search,
and I think we need to distinguishbetween these things to have a useful conversation
about what regulation looks like. Thankyou, So, so, Ryan,
let me let me ask you somethingthat I think is much more at the
heart of what the tech companies wouldsay is their first Amendment right, so
and to consumer. It's a consumerprotection question, which you'll know something about.

(55:36):
I think. So we're all familiar, I think with the addictive,
almost compulsive nature of social media,and so I you know, I have
two small children, some of thejustices, just as Barrett has small children.
I wonder if she thinks about thiskind of thing. I am very
concerned about all the indications that thetech companies have invested immense resources and leverage
data the access to which no companyhas ever had in world history, into

(55:58):
developing algorithms that dick children and pushthem into destructive behavior. Because that makes
them look at it longer, andyou know, some of them commit suicide.
The rest of them are still lookingat the thing or for the for
TikTok. You know, there there'splenty of evidence that it's pushing basically Chinese
Communist Party propaganda on children, onyoung adults, on people. That strikes

(56:19):
me as a major public health issueand a major national security issue. Do
you understand that Choice's position to bethat they have a uninfringeable First Amendment right
to just do all of that,and the States can't stop them. Congress
can't stop them, and we're justcaptive to whatever, you know, whatever
they want to develop in their algorithmor or kind of How should we think
about that? Yeah, that's athat's a really good question, James,

(56:40):
and I want to take a stepback for a moment to try to answer
that question well and point back tosomething that Canest just said and also Professor
teach Out said, which is thatthe posture of this case made it very
difficult to argue and also very difficultto listen to because it was a facial
challenge, and underneath the hood ofthat facial challenge, you had two laws
that had a number of different requirementsand provisions, some of which were speech

(57:05):
related, some of which were not. And then below that you had entities.
Multiple entities were members of net joyswho do a number of different things.
I mean, these Internet companies areconglomerates that provide multiple business lines.
There are very large institutions that wouldbe covered broadly by these very broad statutes.
So you were trying to mix andmatch various applications of these broad laws
to broad businesses. And I thinkwhat that created was a lack of ready

(57:30):
analogies or a shifting set of analogies, and it forced the advocates and the
judges to shift analogies rapidly between applications, and you never really got to ground
on how the law should apply.And I think what that cause was you
saw some very odd arguments being madeon both sides that and just looking at
it as someone who's a First Amendmentlawyer, and I want to be clear,

(57:52):
I mean, you have a collisionbetween two giant institutions, power centers
in our society that are going ateach other. In this case, you
have government on one hand, youhave large tech companies on the other,
and there's a boundary war taking placein this case right now, and you're
trying to mediate that through the lensof the First Amendments. It's very difficult
to do on a facial challenge.And one of the moments that I noticed

(58:15):
that I thought was just tremendous wasat the very end of the Texas argument,
the Solicitor General Aaron Nielson had tobe asked by one of the justices,
so are you making the argument thatcommon carriers lack any First Amendment rights
whatsoever, even if they are indeedengaging in speech, Because it seemed that
the argument being made by Texas tosome extent would have stripped common carriers of
all their First men rights, settingaside debates about citizens United entirely. I

(58:38):
mean, you've got this argument thatseemed to go to a very strong,
very big extreme, and I knowwe were certainly at ADF would yield to
no one in our defense of theFirst Amendment. And when you have boundary
wars between government and private businesses,or government and private individuals, the First
Amendment puts a thumb on the scaleand says who wins. It's always going
to be private individuals who cannot becompelled or stifled by the government lists there's

(59:02):
some strong reason for doing so.Now, when you have collusion between the
government and these platforms, that changesthe calculus entirely. And I think with
Mrthy and with Vulo coming up laterin this term, we're going to see
a very different set of arguments andagain a shifting set of analogies there.
But to get to your point,something that I thought was very interesting,
toward the middle of the argument,Paul Clement was asked by one of the

(59:25):
justices, do you think it wouldbe permissible? Is it expressive conduct a
part of the platforms to exclude someonefrom the platform based entirely on off platform
conduct based entirely on their identity,based entirely on something they said off platform.
And he said absolutely, that's partof our expressive conduct. Now that
was I thought it was an interestingmoment because in three h three creative as

(59:46):
you pointed out, as Professor teachTeach out pointed out, that was a
much narrower application. There we onbehalf of our client, Laurie Smith,
expressly disclaimed any intent to exclude servicesto anyone based on that person's identity.
Our mantra in that case was weserve everyone, we just won't speak every
message, and that position taken byPaul in his argument that was a little

(01:00:08):
bit at odds with the way weargue three zero three creative. So I
think that just gets to this problemthat you have multiple different applications, multiple
different regulations at issue, and multipledifferent service lines coming into play. Now
to your question, what do youdo about this problem where you might have
algorithmic sorting happening with respect to contentas driving content towards children. That obviously

(01:00:30):
wasn't at issue in the case,but you can see this issue coming down
the line that there are cases rightnow where net choice is challenging state laws
that are trying to engage in protectionof children. Again, the question has
to always be asked, are youregulating the speech of these platforms? Because
I think there's a good argument tobe made that there's a consumer protection angle
to be taken, and there couldbe appropriate legislation crafted to prohibit these platforms

(01:00:54):
from targeting children in a non speechway harm them, that would push content
towards them in a way that wouldpositively harm them. It is a public
health issue. I believe it isa public health issue, and that's why
I think this case is so difficultbecause it involves a collision of two institutions,
powerful institutions with different agendas. Butultimately we're having to mediate this through

(01:01:16):
the lens of the First Amendment ina way that is completely unclear, and
that is the problem with the argument, is completely unclear how those applications would
work because this is all raised ona facial challenge through a PI posture in
a very hurried way. So Ido think there are opportunities to have robust
conversations around how to regulate these platformsin the future to prevent them from targeting

(01:01:38):
and harming children, But I don'tthink that issue is clarified from the argument
yesterday because of this marassive applications thatjust kept evolving around the argument. Thanks,
So I have another one that Ikind of want to get everyone's reaction
to if possible. So one ofthe things, and I'll start with Julie,
we'll just go to the same orderbecause that's easier. But so,
one of the things I also thoughtwas striking about the art argument is,

(01:02:00):
you know, net Choice's position isbased on the First Amendment, and obviously
the US Constitution is sort of theneutron bomb of American law. Right,
if the First Amendment protects all ofthis behavior, then nobody can ever regulate
it. We're never going to actuallyknow what any of the regulations would do,
and all of it's just going toget stopped right at the front gate
based on what strike me as basicallypredictions, and in this case, predictions

(01:02:22):
without even any underlying evidence about whatthese different regulatory measures we're going to do.
So, for example, one ofthe people in our Q and A
pointed out that when the fairness doctrinewent away, maybe you had a more
a greater profusion of views. Youknow, I haven't looked at the empirical
evidence of that, but it justseems to me that it's sort of It's
not as though letting Texas and Floridaor California or New York experiment with different

(01:02:44):
policies that is a much less dramaticstep than having the First Amendment just come
in and say no, the techcompanies can do whatever they want. We're
done here, and I'm just curious, you know, we'll go Julia sefraganesh
Ryan, what do you guys whenyou think about that, and whether you
know part of the problem here isthat we've just rushed into court with the
broadest possible theory before we've had anyexperimentation at all with policymaking. Yes,

(01:03:07):
I think that the facial challenge aspectcaused a great deal of mischiefs, as
we've been discussing. But I alsothink that the hasty drafting of the laws
is a problem. The Florida lawin particular, contains a number of provisions
which remind me of a First Amendmentcourse exam issue spotder. You can find

(01:03:27):
a constitutional problem in just about everyparagraph, and so that may of course
have led net Choice and others tothink that they had an easy lay up
here. Look at what these peoplein Florida have come up with. I
bet we can get we can bringa facial challenge and get this one,
you know, kind of done awaywith immediately. Now. It would be

(01:03:50):
very entertaining if I could tell youthat I think the Florida legislature actually lured
them into a trap by making themthink they had an easy facial challenge.
But then they get to the coordinate. Doesn't work that way. I doubt
that's actually true, but this doesraise to me the possibility that perhaps legislatures,
including those of Florida and Texas,might want to think carefully, listen

(01:04:12):
to the oral argument, read thebriefs, a number of excellent briefs filed
in this case, and think aboutrevising these laws. Other legislatures too.
I hope are now crafting regulate regulationsthat are just a lot more careful and
a lot more thoughtful. Zephyr,what do you think? I think your

(01:04:34):
question is absolutely essential. So Juliais right that they did end up talking
a lot of sort of like whathave we stumbled into? You know,
about the in in within the statuteimplications they started to realize. But of

(01:04:59):
the many things missing in this conversation, which is the thing that I frankly
care the most about, was theimplications outside of these statutes, and there
was virtually no conversation about that.I think Justice Gorsch asked a few questions
along these lines, but it wasnot It was not fully explored, and

(01:05:24):
I frankly think it is the mostimportant because the need for states and the
federal government to experiment to see whatimpacts are is profound. Now, I
do think those should be within limits. I don't think the states should be

(01:05:45):
telling the platforms the viewpoints they canand can't have. But inasmuch as the
laws themselves are neutral, that weshould air on the side of and I
hope the Court errs on the sideof caution in some ways. This is
an institutional question with a bunch ofinstitutions that a lot of us are unhappy

(01:06:10):
with. Right which institution is bestsuited to draft regulations that will be flawed
by the way they will be flawedregulations. I don't imagine that we're going
to get it, that there isa right, that it's right here.
I have some ideas. I thinkthey need to be tried out. I

(01:06:30):
think they should be neutral, butthey won't all work in all the ways
that we want them to. Butthat to encourage states to allow them to
experiment. So I really think that. To me, the big question is
if it doesn't go back and Iyou know, I counted four again.

(01:06:51):
I'm not a watcher, but Icounted four for a full you know,
reman, go away until you haveas applied. That suggests that some other
justices actually want to cony Barrett.Possibly Kagan wanted to make a broad statement

(01:07:13):
about platforms having First Amendment rights applyingstrict scrutiny as applied to content moderation.
I'm worried about that for the reasonsI said, because because James right now,
and people probably don't know this,but under a twenty ten precedent,
Brown regulation of children will be measuredthrough strict scrutiny, So that standard strict

(01:07:39):
scrutiny would apply to laws designed tolimit algorithmic, you know, addictive feats
for kids. Now what I thinkanyway, So I to your question,
I think we should be allowing asan institutional matter, New York and California,
Massachusetts, in Minnesota, and ifthat meant but I even even at

(01:08:03):
the cost of laws that I reallydon't like. And I was clear in
my brief and clearing writing about itthat I think that these laws are problematic
and really slothily written. They're problemly, they're there, they have some problems
on their own, but they're alsoas as a professor Mahoney was saying,
slothily written. I just hope weerr on the side of as applied narrow

(01:08:26):
as opposed to broad claims that couldend up really hurting child safety and other
regulations. Professors heter Ramen, whatdo you think so I'll just make three
points. One is to agree withboth Julia and Zephyr about not loving the
the laws particularly and thinking that theywere not really well drafted. I think

(01:08:50):
put aside the constitutional law school examquestions just as a policy matter, I
think if you were thinking very carefullyout how to regulate tech platforms and you
wanted to accomplish the goals that presumablythe legislature in both of these states had,
there are better ways you could havegone about doing that that would create

(01:09:13):
a better statute. And I thinkthat's and again, as I mentioned earlier,
kind of one of the disappointing partsabout this about where we are in
this field of on just on thepolicy side of how do you regulate tech
companies. The second point is,you know, there's another part that we
haven't talked about in which you knowmuch ink has been spuilt, which is
Section two thirty. And I thinkthat's an important component here. And if
you're talking about kind of experimentation indifferent ways in which the law develops over

(01:09:36):
time, you know, I thinkwe can't ignore that as part of the
story. And then the third thingthat I think is important as we think
about states when you look back athow regulation happened in a lot of these
other platform utility like sectors. Itstarted with the common law, it moved

(01:09:56):
then to state legislatures, and thenit moved to the federal system. And
you know, part of the reasonit moved from the common law to state
legislators is a whole bunch of reasonswhy the common law isn't that great.
You have to do things on acase by case basis. All the harms
already happened before. Then some judgecomes in and addresses them. By the
way, it's some random judge comingup with it who may not be terribly

(01:10:17):
expert in the issue, and there'sno real democratic accountability to that. And
then there's some real downsides to howstates do this too, even though there
are upsides, which is, youknow, maybe there are interstate issues,
maybe you want the rules that aresimilar across multiple jurisdictions. But one of
the upsides to that approach where therewas common law rules, there were state

(01:10:41):
legislative actions and then ultimately federal actionis actually learned a lot in the process
because you could see things and youcould think about what the different rules are.
And so I think one of theother pieces here is you know,
we would learn a lot about thisas we as we have you know,
you think I think there have beensome studies for example, after the European

(01:11:03):
GDPR, the Data Protection Regulation,and you know when you see the pop
up like do you want this personalizationof your data usage or not? Right
because of GDPR, you have thoserules in their studies looking at that and
behaviorally, you know, most peopleclick okay and just move on right,
So there are defaults. There areother things that we learn did that really

(01:11:24):
work? Did it not? Wecan have an assessment of that. But
jurisdictions doing different things allow us tohave that regulatory learning, which you don't
really get when you have as youstarted us out with James, and this
question a kind of rule and whetherthat's statutory or constitutional. That is the
kind of across the board single we'reforeclosing every kind of possibility. I think

(01:11:48):
that makes you know, regulatory policyalso difficult. And then Ryan, I'll
give you the last word because Ithink we only have a couple of minutes
left. We're running low on time. Yeah, I really don't trust the
tech platforms and they're content moderation policies. I really don't trust the government to

(01:12:08):
tell the tech platforms how to docontent moderation. So where does that leave
us? Right, we have twodifferent institutions colliding here, both of them
claiming a mandate to govern this importantaspect of our economy, which is the
moderation of online content. I thinkthe First Amendments for it breaks tie there.
Obviously, the government is bound bythe First Amendment. Private actors are

(01:12:29):
not. Now the problem though,and this gets to your question, James,
which is is is this litigation somehowfor closing a necessary iterative conversation around
this important question of how do techplatforms and government and the public good interrelate?
I worry that it could, andI hope that it doesn't. And
here's what I mean by that asmuch, and again, I believe I

(01:12:51):
would be very worried if the Courtwere to issue a hasty ruling that somehow
undermined the principles laid down in threeor three creative and other cases like that
that prevent the government from compelling speechon the part of private actors. That
would be an absolute loss for theFirst Amendment. I don't think it's going
to happen. I'm also concerned however, that we might take at face value

(01:13:14):
this notion that's been propounded by someof these tech platforms that they're just regulation
free entities, that they have anabsolute right to avoid any kind of interference
by the government and their operations,and oftentimes they feel like they're waiving Section
two thirty as a talismans y're goingto get out of jail free card and
saying, well, you really can'tregulate anything that we do, regardless of
whether it touches speech because of Sectiontwo thirty, and you're overinterpreting and overdetermining

(01:13:36):
applications of the First Amendment. Andthat's where I think the fact that we
have a millunge of arguments that werethrown into the mix yesterday through this facial
challenge was so troubling, because thereare ways to regulate these tech platforms to
prevent them from abusing their power,and I think it's clear that in many

(01:13:56):
cases that they are abusing their power, and we have to find ways to
an iterative, legislative and policymaking processto address that problem, but to do
so in a way that honors thespirit and the letter of the First Amendment.
And so that's a very tough problem, and it's not something that we
can solve overnight. It's something wehave to solve because I think we are

(01:14:18):
in a new paradigm where you havethese two sources of power, these two
sources of power that are oftentimes inconflict with each other, sometimes overlapping and
working in tandem with each other.It's a complicated situation, and so we
have to provide room for policymakers toget this right. And it's not going
to happen. I think in thecontext of a preliminary injunction, brought on

(01:14:39):
a facial challenge to two statutes that, as some have noted, were probably
not drafted in the best way.I mean, they were drafted in good
faith, and I know many ofthe actors who were involved in drafting them,
and they were operating a good faithbased on what and knowledge they had.
But we're at the very beginning ofthis long conversation, and I think
this is an important opening to thatconversation, but it can't be the end

(01:15:00):
to that conversation. Thank you.That's great, and I see Alida's back,
so you have the floor returned.Put your onion aga, Yes,
thanks so much. On behalf ofthe Federalist Society. I want to thank
our panelists, moderator, and ouraudience. For our panelists and moderator for

(01:15:23):
the benefit of their time and expertise, for our audience for asking some great
questions, and and for and foryour interest really in I think an important
and some important questions that go reallyto the heart of the Freedom of Thought
Project. We welcome listener feedback byemail at info at fedsock dot org.

(01:15:44):
Thanks so much again for all ofyou for joining us today. We are adjourned