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‘So to Speak’ podcast transcript: 2023-24 Supreme Court Preview

2023-24 Supreme Court Preview

Note: This is an unedited rush transcript. Please check any quotations against the audio recording.

Nico Perrino: Welcome back to So to Speak: the Free Speech Podcast where every other week we take an uncensored look at the world of free expression, through personal stories and candid conversations. I am, as always, your host, Nico Perrino. I'm Back at FIRE's DC headquarters today, joined by recurring So to Speak guests, Ronnie London. Ronnie, welcome back to the show.

Ronnie London: Hi, Nico.

Nico Perrino: Ronnie is FIRE's general counsel, of course. And Bob Corn-Revere. Bob, welcome back to the show.

Bob Corn-Revere: Happy to be here.

Nico Perrino: Bob is of course our chief counsel. So, in July, we did a review of the 2022-2023 Supreme Court term, and during that conversation, I was on paternity leave. So, Darpana Sheth, FIRE's VP of Litigation, had promised a Supreme Court preview for the 2023-2024 term. So, that is what we are here doing today.

I want to start our conversation by talking about Murphy v. Missouri previously known as Missouri v. Biden, which deals with government efforts to essentially jawbone social media companies into moderating content to its liking.

Bob, you had a long opinion piece for Reason Magazine where you said that the district court opinion which placed an injunction on the federal government and the sort of communications they could have with social media companies was a win for the First Amendment, and a loss for partisans who want to weaponize censorship. But it's a little bit more complicated than that, as you put in your piece.

Bob Corn-Revere: Well, it's more complicated, because politics has gotten involved, and this was pitched as a case to prevent the Biden Administration from meddling with social media platforms. In fact, this is something that all administrations do. The Trump Administration was very active in this kind of thing, too.

So, rather than have the political tinge that has been – most of the coverage has included this, saying this is a win for Republicans and a loss for Democrats – it really is a win for the First Amendment, because it prevents whatever the administration is from trying to put their thumb on the scale when social media platforms make moderation decisions.

Nico Perrino: So, I want to make this issue a little bit concrete. Let's talk about what the government was in fact doing. There was about 155 pages, I believe –

Bob Corn-Revere: 155 pages, 700 some footnotes. A big record.

Nico Perrino: Yeah, and as you say in your piece, not all of it is that concerning. Some of the stuff that you might expect the federal government would want to talk to social media companies about, efforts to spread false information about the election, insofar as like what is the voting day; who are the candidates that are available to vote for; those sorts of things.

Bob Corn-Revere: And in fact, even though the court the District Court issued a very broad injunction against any kind of contacts between the defendants in that case and social media platforms, it created very broad exemptions, as well, that were hard to interpret. And those exemptions went to things like trying to mislead people during an election, or public health information, or national security information.

And so, it was a hard decision to interpret, hard decision to apply, and it's one of the reasons why the Court of Appeals, the Fifth Circuit Court of Appeals, when it looked at this, narrowed the scope of the injunction to tried to clarify it a bit.

Nico Perrino: And when the Supreme Court took up the case, Bob, just to be clear, it stayed that injunction, right?

Bob Corn-Revere: Well, right. The Fifth Circuit had already stayed the impact, or the effective date of the injunction; and while it was in front of the Fifth Circuit, there was a further request for stay that was filed in the Supreme Court by the Solicitor General's Office. And in the course of that, the Solicitor General also asked the court to take the case. So, this is one of those shadow docket cases that became a case that the court will consider on the full merits.

Nico Perrino: Ronnie, you were saying?

Ronnie London: It's not much in the shadows. No chance of this case being anywhere in the shadows. Yeah, I want to come back to the staying of the injunction that was issued on Friday. So, I want us to talk about that, because I've got some concerns about that.

But to your question about the various things in the District Court opinion, some of which are more concerning than others, that the government was doing with respect to the social media platforms: as I read through that kind of litany of various types of contacts, I had the same reaction.

I mean, I would tick off, okay, this seems too coercive, to me; this seems like they're way too involved in the editorial selection and decision making process; this, that's probably just them saying we'd like to see something different from you as a responsible social media platform that has captured so much of the market.

Nico Perrino: Can I pause you right there? Because I want to read some of the stuff, Bob, that you had in your piece, to make it concrete for folks.

So, one example, Bob, that you have in your Reason piece, and I'm quoting from you here: "Biden's then press secretary warned that there would be 'legal consequences' if the social media companies failed to more aggressively police their platforms, suggesting this could take the form of 'A robust antitrust program.'

"Rob Flaherty, then Biden's Director of Digital Strategy, was in constant contact with the social media companies, demanding reports, suggesting content that he believes should be removed, and reminding the companies that his concerns were 'shared at the highest, and I mean highest levels of the White House.' On one occasion, when he didn't get the response he wanted from Facebook, Flaherty demanded to know, 'Are you guys fucking serious?' and he added, 'I want an answer on what happened here, and I want it today.'

The Wall Street Journal revealed some communications between Facebook and the administration. I'm quoting from the Wall Street Journal here.

"The emails show Facebook executives discussing how they managed users' posts about the origins of a pandemic that the administration was seeking to control. 'Can someone quickly remind me' – and this is from Facebook personnel – 'Can someone quickly remind me why we were removing rather than demoting labeling claims that COVID is man-made?' asked Nick Clegg, the company's Facebooks President of Global Affairs in a July, 2021 email to colleagues.

"We were under pressure from the administration and others to do more," responded a Facebook vice president in charge of content policy, speaking of the Biden administration. 'We shouldn't have done it.'"

Bob Corn-Revere: Right, and there were a number of those communications that were incredibly heavy-handed, and I think really over the top, when it comes to coercive jawboning by the government to try and get a private platform to change its policies. And in fact, some of those internal communications talked about how the platforms were applying decisions that were outside the range of their own moderation policies.

On the other hand, the District Court decision was pretty indiscriminate, and swept in not just those kinds of coercive comments that you just read, but also, just sort of routine contacts between the social media platforms and people in government. And the First Amendment doesn't prevent people in government from talking to private speakers; and newspaper editors, are used to this, right?

Nico Perrino: I was gonna ask. National security concerns.

Bob Corn-Revere: And I have seen reactions from people who have been in the newspaper business for a long time, saying "What's the big deal here? Governments tried to jawbone newspaper editors all the time." But there's a difference, a critical difference. Two differences, really. One is the First Amendment has always very clearly protected the independence of the press, at least in the modern era.

And the other is a tradition and a profession which values that independence; and what you have here is a blurring of those lines, and it's one of the reasons why it's important for a port to draw a strong line and to define it clearly, between what are permissible government contacts, and what are not permissible.

Bob Corn-Revere: Well, I'd say there's a third difference, also, in that you have to also look at the larger context, here. I mean, you've got an FTC currently that is very active, and does a lot of saber rattling of its own about how it likes to use the antitrust powers, and other powers, and even has asked Congress for additional powers to regulate social media. And that's kind of lurking in the backdrop.

But another difference is, unlike the traditional press, didn't have those antitrust concerns with the traditional press, Well, you didn't have that lever, at least not in modern times, right? You didn't have that lever to pull.

But I think that I agree that there was some stuff – in fact, a lot of stuff – in the District Court opinion that might fall under the category of regular communications the government might have with social media, or even with the traditional press; but I think it was important for them to be in the decision, because the volume of the communications, the frequency with which it was happening; you didn't get a real flavor of that if you just cherry-picked out all the ones that you could put a C next to for coercive, or an E next to encouragement.

You really needed to get a feel of the whole gestalt of it to understand why the ones that are coercive were coercive, and why they were so – well, I shouldn't say "so" – but much more involved in the activity of the social media platforms than the government ought to be.

Bob Corn-Revere: Right. There were daily contacts from multiple government offices, special meetings, special avenues for communication with the social media companies. So, Ronnie's right, just the volume and intensity of the communications itself was a factor in explaining that decision. But it's also worth remembering for some of these public statements, and the ones you read about threatening antitrust action, threatening removal of Section 230. These are precisely the kinds of threats that came out of the Trump administration, as well.

And so, this is one of the reasons why it's so, critical for the courts to draw a line between what's permissible and what's impermissible, because whichever administration we have looming in the future, if the courts give a green light to this kind of strong-arming to private social media companies, it's going to be very bad for free speech. People will say that when private companies make moderation decisions, that people don't understand and can't challenge; that's bad.

The only thing that's worse is if you have the government standing in the background, making those decisions for them, and you turn what would have been decisions you could challenge in court when the government makes it into decisions you cannot challenge, because it's done by a private company.

Ronnie London: And to think that you had like these meetings where government representatives were sitting at the table having conversations with employees of the social media platforms about how their moderation processes should work, and what they should include, and what they shouldn't include. It's almost like they were either clients or members of the company.

They're all sitting around a conference room table, talking about how should this work, and they're making decisions driven, in part, by government input. And that's what the courts, both the District Court and the Circuit Court, meant, when they said that the government was too involved in the decision-making at the platforms.

Nico Perrino: Well how do when the government's too involved in the decision-making? Is there court precedent on this matter? It's hard to believe this is the first time this question's come up.

Bob Corn-Revere: No, it isn't, although it's been a long time since the Supreme Court has actually addressed this issue. The key precedent goes back to 1963. It's a case called Bantam Books v. Sullivan where Rhode Island had set up a commission, a Commission for Morality and Youth, that was an advisory commission where you would have them list books they thought, in local bookstores, that were inappropriate for youth.

And then, once they issued that notice, they would have policemen go around the bookstore and say, "Oh, by the way, have you seen this list, and are you still carrying these books?" And so, it was that kind of not-so-subtle pressure that was considered to be a form of informal prior restraint, informal censorship, that was being imposed by the state.

Now, the court hasn't really directly addressed that, really in in decades. And so, this is sort of a modern manifestation of that, and it's an area of when is too much contact too much. That hasn't really been all that precisely defined, even in recent cases that we've been involved with.

So, what happened in Missouri v. Biden is a really welcome opportunity to draw some clearer lines about what is too much. And the Court of Appeals, in particular, I think, did a good job in trying to set the parameters.

First of all, when is there too much cooperation? As Ronnie pointed out, the daily meetings, the deluge of contacts; and in some cases, outright demands for social media companies to change their policies. That sort of cooperative content where you can't tell the difference between the private decision and the public decision. That was considered to cross the line. And then, the threats, the coercive power, when that was considered to be too much.

So, this is really a terrific opportunity in the internet age for the Supreme Court, now that it has accepted this case for review, to draw those lines, and indicate when the government cannot put its thumb on the scale

Nico Perrino: There's another case that the court is considering at the moment that's in conference, and it's been passed up in conferences numerous times. They've asked for more briefing on it. NRA v. Vullo, which involves the Superintendent of Financial Services, Maria T. Vullo of New York, who wrote a letter to financial services institutions in the State of New York, which encouraged them to more or less stop doing business with the NRA.

And I'm quoting here from the last line of the letter. "The department encourages regulated institutions to review any relationship they have with the NRA or similar gun-promotion organizations, and to take prompt actions to manage these risks and promote public health and safety."

So, the government here is essentially saying, "That's a nice financial services business you have here. It would be a shame if something happened to it, right?"

Bob Corn-Revere: Right.

Nico Perrino: Or at least that's how it feels. Maybe I'm wrong.

Ronnie London: Right, so, just to table set a little bit more, these were insurers who were underwriting or providing insurance for programs that were sponsored by the NRA, right? So, they're NRA-branded insurance programs. And the problem was that, according to the state, that they violated state law by providing coverage not just for accidental gun injuries and things like that, but also for intentional and criminally negligent activity by gun owners, which under state law, insurance companies aren't supposed to provide insurance against.

And so, there was this investigation going on of Lloyds of London and a couple of other insurers. And while that was going on, you had the Parkland shooting, And so, the governor comes out, and the secretary comes out, and they're very, "Hey, we've got to get these guns under control," and one of the things they did was they – like you said, you just read the letter. They persuaded the insurers to take another look at whether they were being good corporate citizens, and whether they should continue being in business with the insurance companies.

But at the same time, they were negotiating consent decrees with these insurers about whether they could continue to do business, and one of the outcomes of that was that – in the Second Circuit, and its decision that's up on potential review for the Supreme Court – one of the things they pointed out was, "Well, they didn't say that they couldn't be in business with the NRA anymore. They were more than welcome to write insurance policies for the NRA itself."

But what the Second Circuit kind of glossed over, in my opinion, was they did tell the insurance companies that they couldn't provide this NRA-sponsored insurance anymore; and the NRA said you're picking on us, because of our pro-gun-rights advocacy –

Nico Perrino: Right, protected speech.

Ronnie London: Yeah, and the District Court was prepared to issue an injunction, and say there was no qualified immunity. With respect to what the secretary was doing, that was appealed, and the Second Circuit reversed, and held that this whole case needs to be dismissed, saying this wasn't sufficient government meddling, and this wasn't sufficiently government coercive activity in response to the First Amendment activity.

And I think it raises an interesting question about – you mentioned this has been put to conference several Times now. Now that the court has granted cert in Murphy to take up its first jawboning case in, really, decades, will it take two jawboning cases at the same time, or will it decide one, and then use that to guide what it does with the other? That's a black box.

Bob Corn-Revere: Yeah. I would like to see it take up the case.

Ronnie London: Yeah.

Bob Corn-Revere: And it would be in keeping with what the court has been doing, both last term, and this term, with taking up pairs of cases that go in different directions, and then using those to shape what the law should be, going forward.

Nico Perrino: So, before we move on, because we've got a lot of other cases to cover, let's cover the questions presented in this Murphy v. Missouri case: whether the respondents have Article 3 standing; whether they have standing in this case in,, Murphy we're talking about states; I believe the State of Missouri, and the state of Louisiana.

We're not talking about social media companies in this case. Whether the government's challenged conduct transformed private social media companies content moderation decisions into state action, and violated respondent's First Amendment rights. And, three, whether the terms and breadth of the preliminary injunction are proper. Can I just get 60 seconds from both of you on what you think?

Bob Corn-Revere: Well, the first and third questions, I think, are pretty unexceptional. I mean you, will see people raise standing issues as a typical matter in in cases like this. This one is slightly more interesting than others, because there are no social media platforms that are in this case. And then, the third question, about the terms of the injunction, again, that makes sense.

The second question is the one that I get stuck on, because again, the social media platforms were not part of the decision below. The question was how much can government actors do in pressuring these private social media companies, and neither the District Court nor the Court of Appeals made a decision that the social media companies had become state actors.

The decisions in those cases were whether or not the government had gone too far in pressuring private actors. So, they didn't become the state. They didn't become the state. The didn't become state actors. They were the victims of state pressure.

Nico Perrino: Then, Ronnie, why does this question even get presented?

Ronnie London: I don't know. In fact, the District Court and the Circuit Court were very careful to say that these parties aren't before us, and that question is not before us. The law is pretty clear. For example, you take the decision that Judge Persner wrote in the Backpage case, where Sheriff Dart, again, went to financial service companies and kind of said, "Hey do you really want to be in business with this online classifieds as business that is problematic in these ways?" And the court was very clear in saying it doesn't matter whether the target acquiesces to the government jawboning. The government jawboning is unconstitutional in and of itself.

And so, to the extent that that's the case, the fact that the question presented is whether it turned the social media platforms into state actors, who thereby engaged in activity that violated the First Amendment rights of the of the plaintiffs here, to me, is – I agree with Bob – it's a little bit beside the point, because even if the social media platforms would have stiffened their backbones, and told them to go pound sand for every one of these – which would have taken a fair bit of courage, given the way some of these requests were worded – even if they had, the activity would have still been unconstitutional. It still would have been unconstitutional to lean on them that way.

Bob Corn-Revere: Right. But to answer your question, Nico, the reason I suspect that the question is worded that way is because it was presented by the Solicitor General. It's like the old advice that you give politicians when they're being interviewed: don't answer the question that's asked; answer the question you'd prefer to answer.

And so, I think the Solicitor General presented the question in this way, not so much to answer the question of when the government has to be restrained in putting pressure on private actors, but rather to put the onus on the private platforms – who, by the way, are not in this case – and say, when do their actions become unconstitutional?

And so, I'm hoping that the court will not get distracted by this shift in the question from what was answered by the lower courts to what is being presented here, and will actually focus on when the Constitution limits government jawboning actions.

Ronnie London: Yeah. It's somewhat an artifact of the odd posture of this case. Another thing that is interesting about this case, given its posture: the Fifth Circuit, as Bob mentioned, significantly narrowed the preliminary injunction that the District Court ordered. There were 10 different things that the District Court said that the federal officials that are parties for this couldn't do.

The Circuit Court eliminated nine out of those 10, and it also, got rid of all of the carve-outs that Bob mentioned. And if you read the decision, the Fifth Circuit is very concerned about how over broad the injunction is, how vague it is, how it doesn't put federal officials of common intelligence on notice of what they're allowed to do and what they're not allowed to do, and how it'll chill their ability to engage as good government actors in taking positions on policies.

And I was reading it, thinking: gosh, if only plaintiffs in First Amendment cases got that kind of solicitude when they challenge regulations and laws as being vague and overbroad, because rarely do you see that kind of concern going the other way.

Nico Perrino: So, let's move on now to the –

Ronnie London: Well, before we do, I just want to talk very briefly –

Nico Perrino: Okay, very briefly.

Ronnie London: Very briefly about the stay that was entered on Friday, because basically, the preliminary injunction, even as narrowed by the Fifth Circuit, the Supreme Court, majority of the court, has now stayed. You have a dissent from Justices Alito, Gorsuch, and Thomas, saying, "Wait a minute, what are you talking about? If you apply our standard stay standard" – which is, will there be a reparable harm pending further activity in the case; what are the balance of the equities; so on and so forth – they say, "Wait a second, where's the government showing of a reparable harm?" Right?

The government is saying, "Well, if you don't stay the injunction, we might not be able to be comfortable saying this kind of thing, or that kind of thing." And Justic Alito points out that that's all kind of speculative, and they could always come back, if there was any real problem with anything that they wanted to do, that the injunction was going to prohibit.

And this, to me, is an important point, because when you talk about the government's interest here in being able to engage in communication with social media platforms, that is not First Amendment protected activity. That's government speech. That's government power. Yeah, it's always very important to pay attention to the difference between government authority on the one hand, and the exercise of rights held by individuals and entities on the other hand.

And this is also a big problem in the Vullo decision, because the court and Second Circuit did a terrible job talking about the right of the secretary to be saying these things about an issue of public concern in terms of gun safety and everything else. She doesn't have a right, per se. She has powers that she exercises, and needs to be circumspect about exercising them in a way that doesn't infringe the rights of private entities. And so, I was a little concerned about the stay that was entered, much in the same way I was concerned when I read Vullo.

Bob Corn-Revere: And the point of the First Amendment is that rights trump powers, right? That's a guarantee against the exercise of government power. And Justice Alito, in his dissenting statement, raised an interesting rhetorical question when he said, "Is there some sort of coercive activity that the government wants to engage in between now and the time we actually decide this case?" And that's the only thing that's being restrained.

Ronnie London: Yeah. I really wish there'd been even a short analysis of the grant of the stay, explaining the thinking behind it.

Nico Perrino: Well, I don't believe oral argument has been scheduled in this case.

Ronnie London: No, not yet.

Nico Perrino: But I'm assuming this is one of those decisions we'll see in late June.

Ronnie London: Alito says so, in his dissent.

Nico Perrino: Oh, does he really?

Ronnie London: Yeah, pretty much.

Nico Perrino: All right. Let's move, now, to another set of controversial cases. These are the NetChoice cases. You have NetChoice v. Paxton, and you have Moody v. NetChoice. One arising out of the Fifth Circuit, NetChoice v. Paxton; one arising out of the 11th Circuit, Moody v. NetChoice. Let's start with the NetChoice v. Paxton case, and we can kind of play the 11th Circuit case off of it.

This law coming out of Texas, HB 20, regulates large social media platforms and the law purports to prohibit large social media platforms from censoring speech based on the viewpoint of the speaker. It has three components. One is, obviously, the viewpoint based censorship restrictions, except for content that would otherwise be illegal, and cites criminal activity as unlawful. You have Section 2, which requires platforms to disclose how they moderate and promote content, publish an acceptable use policy, and maintain a complaint and appeal system for their users.

If I'm understanding correctly, Section 2 isn't before the court? It's the viewpoint discrimination?

Bob Corn-Revere: No, Section 2 is before the court. What isn't before the court is a disclosure requirement, that they have to disclose their policies.

Nico Perrino: Got you. And so, you have the State of Florida bill, which is SB 7072. The legislation imposes various restrictions and obligations on social media platforms, such as prohibiting the deep platforming of political candidates, and requiring detailed disclosures about content moderation policies. It seeks to treat social media platforms like common carriers, and focuses on those platforms which have a gross annual revenue of 100 million, or at least 100 million monthly individual participants.

So, essentially, what you have here, if we're talking about kind of the societal concerns that led to these laws, which is tech companies, social media platforms, are a place where a lot of us have conversation about the issues of the day. What they do in their content moderation policies has impact for the national discourse.

There are a handful of them that are prominent, in that I think – Twitter, now X, Facebook; we have TikTok – and that they have, according to some Republican state legislators, been too eager to moderate content that would seem to be mostly conservative content, and conservative speech. And so, this is an effort to rein that in. But let's start with you, Bob. They go too far?

Bob Corn-Revere: Well, yeah, I think both state laws did go too far. And let me draw a sort of a point out to show the contrast between the Murphy decision where we're talking about jawboning, and these. In Murphy, where you're talking about jawboning, you're talking about the Wizard of Oz, saying, "Pay no attention to that man behind the curtain." The man behind the curtain is the government, pulling the levers of the social media companies, and when the government goes too far. Here, we have the government acting directly, out in the open, to impose restrictions on the decisions by private platforms.

And as I said before, if you're worried about companies moderating your content in ways you don't like, the only thing worse than that is having the government doing it in the background. But here, I think it's quite clear. Once you recognize that these private media platforms are applying their own sort of editorial standards for what kind of community they want to create; when you have a government law that interferes with that, you are violating their First Amendment rights.

Now, The Fifth Circuit disagreed with that, and basically said those companies are engaged in censorship. Well, maybe they are, but it's not unconstitutional censorship, in that the Constitution prevents government action that restricts speech. Restricting private action is very different, because for one thing, these private platforms, as big as they get, are not monopolies in the way governments are. Governments are monopolies on force, and here, they're using that authority, that force, to restrict what private actors can do.

The 11th Circuit, on the other hand, with the Florida law, got it right in holding that this is a restriction of the First Amendment rights of the platforms to set their own policies.

Nico Perrino: Right.

Ronnie London: And I don't disagree with any of that. This presents the fundamental question, I think: are social media platforms publishers and private speakers, or are they something else, that the government can somehow prescribe how they're allowed to act? Whether they have to remain viewpoint neutral; whether they have to carry all traffic that comes to them, whether they want to or not.

And I think I think, to me, the answer is fairly obvious. First of all the comparison is common carriers, right? Are they like the phone company? And the Fifth Circuit decision, even the Fifth Circuit decision, the part of the decision that talks about how they're comparable to common carriers only got one judge to sign on.

So, it's not even part of the majority holding. But that's the analogue, right? Can you force social media companies because they hold themselves out as being open to anyone who wants to use it, and then they can post whatever they want, and have that seen by everyone who wants to log on? Can you treat them as common carriers?

And I think, at the end of the day, if what you're complaining about is that the social media platforms are using too much editorial discretion in what they allow to be on the platform, or what they deprioritize; if that's your complaint, well, then you've already answered the common carrier question right? That's the opposite of what common carriers do. Common carriers have to have to provide nondiscriminatory service to all within the class of the users of the of the service. That's the opposite of what of what social media platforms claim to be. They have terms of service that are very clear; here are the categories of speech.

Bob Corn-Revere: Some more clear than others.

Ronnie London: Yeh, well, but very clear that there are going to be categories that they don't allow, or that they're going to disallow. The categories may be unclear; they may not be well defined; but they are very clear that they are engaged in the process of making decisions about what's allowed and what's not allowed, and that's what an editor does. That's what a publisher does. They decide what they want to put forward for the world to see.

And that's why I think the 11th Circuit gets it completely correct. First of all, the Fifth Circuit decision, when the beginning of the decision starts by saying, "Well, let's reconsider what they said in Marbury v. Madison, you know you're getting off on the wrong foot, and it just goes downhill.

Nico Perrino: For our non-legal listeners, Marbury v. Madison, Ronnie is?

Nico Perrino: It's the case that essentially established that the Supreme Court is the final arbiter of what's constitutional, and what federal law means.

Bob Corn-Revere: It was when a decided 200 years ago.

Ronnie London: Yeah it was more than 200 years ago, now wasn't it?

Bob Corn-Revere: Yeah, more.

Ronnie London: Yeah, and basically was Justice Marshall writing for the court, saying, "Look, this is what the third branch of government does, and this is what we're empowered to do," and the decision just kind of –

Nico Perrino: And then the decision goes on to do that thing that it was empowered to do, right? But to me, this kind of belies an understanding of how social media companies operate, right?

Bob Corn-Revere: It does.

Nico Perrino: Because social media companies differentiate themselves based on how they moderate and deliver content, right?

Bob Corn-Revere: They do.

Ronnie London: That's how you know they're not common carriers.

Nico Perrino: Yeah, no. And as much as some of us might disagree on how that power is exercised, or the judgment and discretion that they leave up to themselves, and how that might have a political valence, that's what different – and so, they're almost trying to impose a First Amendment standard on these social media companies, which we know is a very expansive standard, rightfully so.

But these companies spend a lot of time taking crush videos off their platforms; taking beheading videos off these platforms; taking porn off their platforms. Now, maybe there are social media companies that you want to have those sorts of things, but most of these companies, and I think probably most users, don't want their timelines –

Bob Corn-Revere: And they will have different policies based on the philosophy of the company. And as when you first started talking about these cases, there were two questions that were raised. One was whether or not the First Amendment protects their ability to make moderation decisions. But the second was whether or not it goes too far when the government requires the social media companies to have a process for responding to complaints about how they were moderated, and if they have to have sort of an internal review, judicial review inside the company.

Nico Perrino: It sounds like a case that we might be familiar with.

Ronnie London: It does, and the problem there is, these social media platforms deal with millions of posts every day. I mean, the commonly cited statistic for YouTube, for example is that 500 hours of video are posted every minute. Okay, so, consider how that scales when you have to have a process for reviewing every moderation decision that a company is likely to have to deal with, and having that imposed by government as an obligation for private companies to make is simply an impossible burden. And that's the second question that the court will be looking at.

Nico Perrino: Bob, to go back to the Murphy case, which at the time you wrote your Reason piece was Missouri v. Biden, of course. You have this great line that kind of speaks to the schizophrenic nature of how these Republican AG offices are handling social media. So, in that case, they wanted the government to take its thumb off the scale of social media content moderation decisions, and the Missouri Attorney General, Andrew Bailey, described the District Court opinion as "A huge win for the right to speak freely without government censorship."

Here, in Texas, for example, and in Florida, they want to put their thumb on the scale of content moderation decisions. They're saying you can't moderate content. But on the same day, Missouri v. Biden came down in the District Court level. Bailey, the Missouri Attorney General, was one of several state AG's who sent a threatening letter to Target, warning that the sale of LGBTQ-themed merchandise as part of a Pride campaign might violate the state's obscenity laws. So, it just doesn't seem to me like they have a consistent theory of First Amendment.

Bob Corn-Revere: Not consistent as the kindest possible way to put that, and also a position, in its letter to Target, that as I wrote in the piece, would embarrass a first year law student. But it goes deeper than that, and this is problem that's endemic to the political use of constitutional arguments, and that is, everyone wants to enforce First Amendment rights so long as it's good for their team, but not the other team. So, you see this conflict between the attorneys general in their pressure on Target, compared to how they're now arguing for the First Amendment rights of social media companies in Missouri v. Biden.

You also see that in a letter sent by a group of attorneys general, which included Missouri's attorney general, sent to Yelp, and from also Attorney General Paxton in Texas, arguing that Yelp, in its consumer reviews, was not fairly describing these crisis pregnancy centers that are centers that are there to advocate against abortion, and Yelp simply wanted to designate in its customer reviews that these were not centers that provide abortion services, and they might not have medical personnel available.

The AGs are now suing Yelp, arguing that this is deceptive speech; they can't really have that kind of that kind of disclaimer when they're describing what the crisis centers do. Now, contrast that with the approach that California took in trying to compel these private pregnancy crisis centers to have state mandated disclosures of –

Nico Perrino: Is this the [inaudible] [00:37:12] case?

Bob Corn-Revere: Yes. And so, both sides, the conservatives, the liberals, they're all trying to bend the First Amendment to their will, and serve their own policy objectives; when in fact, as FIRE stands for the proposition that the First Amendment doesn't take sides, and that both of them, when they're trying to use state power, to either compel people to speak, or prevent them from speaking, they're crossing the line.

Ronnie London: Well, in the same way you have – I feel like we've been talking about the Netflix cases for like 10 years –

Nico Perrino: The Netflix cases?

Ronnie London: I'm sorry, the NetChoice cases, for years. It's been a few years that we've been talking about it, as they've been matriculating through the courts.

But you have the Solicitor General's office in the NetChoice cases saying, "Oh, no, the court needs to review – and this is one of the reasons that the cases weren't heard last term – is that they waited for the Solicitor General to weigh in, and then ultimately decided to grant cert. There's a pretty clear circuit split. But the solicitor general came in, and said the 11th Circuit kind of got it right, and the Fifth Circuit kind of got it wrong, and the government shouldn't be dictating what whether or not these social media platforms should be viewpoint neutral.

At the same time, they're litigating in Louisiana, saying, "Well, but we can kind of go behind the scenes and tell them what they should leave up, and what they should take down; and that's okay," and now they've got this cert petition before the court, saying, "Hey, you've got to relieve us of the obligations of this preliminary injunction, to keep our thumb off the scale." And it's whatever has political utility at the time, yeah.

Nico Perrino: And we should say, for our listeners who aren't familiar with NetChoice, it's a trade group for internet technology companies, often social media companies. I don't believe every social media company is a member of the trade group, but many of them are. I don't –

Bob Corn-Revere: The major ones are, yeah

Nico Perrino: Where do you think the court will come down on this one? So, Texas passed a law, and the Fifth Circuit affirmed it more or less; and so, has it gone into effect, or was it stayed by the –

Bob Corn-Revere: No, it's been stayed, but let's –

Ronnie London: [Inaudible] [00:39:26] the parties.

Bob Corn-Revere: Let's take them in turn. The Solicitor General's office, in its brief to the court, said that the court should uphold the 11th Circuit decision, striking down the Florida law, and should reverse the Fifth Circuit, which upheld the Texas law. I know that's getting confusing talking about different cases going different ways.

The point is, they're saying that the First Amendment should protect the social media platforms. Now, that's really significant for a variety of reasons, among which, that the solicitor General's office, both in this term's Supreme Court cases, and in the cases that are presented for the coming term, has been hugely influential. It has filed briefs in the cases, advocating various positions; it has asked for and received argument time in the major cases; and in many instances, the court will take those views and incorporate them into the decisions, such as the Counterman decision from last term, which we may get to.

And so, if that trend holds true, we will see how that plays out in the social media platform decisions, and perhaps explore some of those tensions that Ronnie just mentioned, where you have the Solicitor General's office saying, "Yes, social media platforms have First Amendment rights, but not when it comes to jawboning."

Ronnie London: Well, you know what, that's partly necessary. So, imagine if this court – I hope. and don't think – and I hope that the Supreme Court won't affirm the Fifth Circuit. But imagine if the Supreme Court affirms the Fifth Circuit for the proposition that the social media platforms have to be viewpoint neutral in what speakers and what viewpoints are allowed on the platforms.

Well, then, how's the government going to engage in jawboning, right? You can't say, "Take this down, because it's misinformation," because all you're doing is regulating taking it down based on viewpoint, and that'll be prohibited, right? So, they have to preserve the right of the platforms to be able to engage in that kind of editorial discretion.

Nico Perrino: That's our social media clip right there.

Bob Corn-Revere: Yeah. If you get if you get down to it, I remain optimistic that the Court, given its strong First Amendment track record, is going to uphold the First Amendment rights of social media platforms. I am hoping that when that comes to jawboning, it will get refocused on the actual question before the court, and not the one that the Solicitor General tried to tweak out of it. And I'm also hopeful that the Supreme Court will deal with how public officials use their social media platforms in applying First Amendment standards.

Nico Perrino: Well, that gets assigned to the next set of cases. But before I say that. if the Supreme Court affirms the Fifth Circuit, I don't know how these social media companies operate. I just don't know how you have a social media company.

Bob Corn-Revere: Well, even just having to evaluate appeals from your moderation decisions. I don't know, physically, how that could be done.

Ronnie London: Well never mind that. If you want to run a social media platform that doesn't allow hate speech, whatever that happens to be, or doesn't allow pornography, however you define that; how do you make those decisions, and square it with the Supreme Court having told us a few terms back that giving offense is a viewpoint; that saying things like FUCT is – FUCT as a trademark – if you prohibit it, it's a viewpoint discrimination; if you take that away, they have to basically – anything goes.

Nico Perrino: Yeah, it seems like, for as much ink has been spilled on how the Court doesn't understand technology, my understanding is they have kind of looked at the 230 question, too, and sort of gestured and understood that to get rid of 230 would be to break the internet.

Ronnie London: I just think that's more that they understand that they don't understand technology.

Bob Corn-Revere: Well, no, I've been encouraged by that, as well. And this last term, the Supreme Court, much in the style that we've seen in the coming term, accepted two cases for review that explored that question, and this raised the question of Section 230 directly. Section 230 is that provision of the Communications Decency Act that provides, among other things, immunity for platforms that carry third party speech; it says that they're immunized from cases trying to hold them responsible. Most cases were trying to hold them responsible.

Nico Perrino: So, the comments ;on social media videos you uploaded to YouTube; things –

Bob Corn-Revere: And certainly, Justice Thomas has been a strong critic of Section 230, saying that it needs to be reconsidered; Justice Gorsuch has also written along those lines. And so, there was a lot of concern that the internet could, in fact, be broken, if the Supreme Court were to undermine Section 230. It considered two cases last term, to look at that; one actually looking at what kinds of actions by a social media platform could make it responsible for third party speech; whether or not that constituted aiding and abetting. And in an opinion, a unanimous opinion written by Justice Thomas – this is the Taamneh case –

Nico Perrino: Yeah, the Twitter v. Taamneh.

Bob Corn-Revere: Yeah. How this was not sufficient. It would be like holding the phone company responsible for people having conversations on the phone company. And he pointed out, as proponents of Section 230 often do, the millions and in some cases billions of communications that are at issue, and how it would be impossible an impossible burden if social media platforms are – in this case, even just internet platforms – were held responsible for that kind of third-party speech.

Now, that makes me somewhat optimistic, at least –

Nico Perrino: Especially Justice Thomas.

Bob Corn-Revere: Certainly, Justice Thomas, who's been the biggest critic of Section 230. For him to apply that insight, in saying that internet platforms are not going to be held responsible, unless you have direct evidence of how they've been actively involved in promoting the kinds of crimes that are the subject of that speech. That means I think the Court is – even its most severe critics of Section 230 – the Court is sensitive to how their actions could undermine what we understand and use on a daily basis to be the public internet.

Nico Perrino: Well, I think we might start seeing a little bit of what happens when you lose 230 protection, because in Europe right now, they have the Digital Services Act; and my understanding was that after 230 was passed, Europe kind of had a similar law put in place; but the Digital Services Act would roll that back, and take back some of that immunity granted to internet service providers relating to third party content, and you're even seeing companies right now, for example, like X – and Musk says they're considering leaving Europe as a result of this.

Bob Corn-Revere: Which does raise the question, why is it that Europe has no huge Internet companies as the United States does?

Nico Perrino: Yeah, yeah. All right, so, let's move now to the social media blocking cases. We have two of them that the court has agreed to hear.

Ronnie London: Another one of your pairings.

Nico Perrino: Yeah, right? So, we have O'Connor Ratcliffe v. Garnier. This involves Christopher and Kimberly Garnier who are parents of children in the Poway Unified School District in the City of Poway, California, which is just north of San Diego. They are critics of the school district, and the district's board of trustees; and the trustees began to hide or delete critical comments, or often repetitive comments, from the Garniers; and then, around 2017, they blocked them from their social media pages entirely.

We also, have Lindke v. Freed. In 2014, James Freed was appointed as city manager of Port Huron. He had previously had a private personal social media account, but he had gone on to update his Facebook page to reflect his new title as the city manager; and on his page, he shared both personal updates about himself and his family, and professional updates.

And then, Kevin Lindke in this case came across Freed's page, and did not approve of how Mr. Freed was handling the pandemic. He posted criticism of Freed in response to Freed's Facebook page; and Freed deleted the comments, and ultimately blocked Lindke. And so, the question for the Court is, if you have public officials blocking constituent comments on their accounts, is this unconstitutional? When does a public official's social media activity constitute state action subject to the First Amendment?

Bob Corn-Revere: That's right. As I mentioned earlier, the whole question is whether or not you've got government action involved versus private action. And here, you have public officials who are using their private accounts for public purposes; and how much of that public purpose converts what they do into government action? And by extension, when does that mean they have a less ability to censor the communications they get from their constituents?

This isn't a new issue. This is an issue that came up when former President Trump used his Twitter account for basically conducting much of his public business.

Nico Perrino: Famously.

Bob Corn-Revere: Very famously. He used it to make for making public announcements. He used it for criticizing opponents. He used it for actually conducting business. And the question came up of whether or not he could silence his critics who would post on Twitter. The Second Circuit, in a decision, said that his use of it converted the public comment area as a public forum; and so, that the First Amendment did limit what he did; but he left office before the Supreme Court had a chance to look at this question. And so, the Second Circuit decision was vacated. Now,, this coming term, we have –

Ronnie London: As moot.

Bob Corn-Revere: Yeah, it was vacated as moot, because the president had left office. Now, we have public officials at lower levels who are conducting the same kinds of public business; maybe not to the same extent as former President Trump did, but still doing so. And so, the question is, what about their use of these private platforms constitutes state action?

Two circuits have reached completely contrary decisions on this. The Ninth Circuit has said – much like the Second Circuit did in the Trump case – has said that you look at the totality of circumstances. You look at all of the range of factors that constitutes public use, and determine whether or not that is actually conducting public business online; and if it is, that limits their ability to silence their critics.

Nico Perrino: So, if James Freed, in this case, had just used his Facebook account for personal –

Ronnie London: Well no, actually that's the Sixth Circuit case.

Bob Corn-Revere: That's the Sixth Circuit.

Ronnie London: That used a different test entirely. You want to keep going?

Bob Corn-Revere: No, go ahead. Go ahead.

Ronnie London: No, so, Bob said two different circuits came out two different ways. So, the Ninth Circuit case is the former case that you mentioned.

Nico Perrino: Yeah, the Christopher and Kimberly Garnier.

Ronnie London: Yeah. The Sixth Circuit case was the Freed case, and this was the one where the Facebook account was used largely for personal business until he became a government employee, and he just kind of folded in his that aspect of his life into his continuing use of the Facebook page, while continuing to use it his personal business.

Nico Perrino: But James Freed, also, his Facebook account was initially just for personal use, as well.

Ronnie London: Right, right, and that's what I was saying. But the Six Circuit took a different tack. The Sixth Circuit used what I think they called a government nexus test; and the question was, by using your social media account in a way that is a result of your having government power –

Bob Corn-Revere: Actual or apparent government authority.

Ronnie London: Actual and apparent – go ahead.

Bob Corn-Revere: Which means, essentially, government authority. If it's actual, that means the government has set up the account for you; it runs the account; it funds the account; you might have public employees who are conducting the business on it; or, the apparent authority, which is very close to that. There's really no difference between the government opening up a website, which would be subject to constitutional rules. The question here is whether or not anything short of that would constitute state action.

Now, one way to understand that is that virtually every member of Congress conducts public business through their private accounts. They also have public accounts, but their private accounts constitute much more of the traffic that they get. President Biden has a private account that he uses as President of the United States, as well as a public White House generated account.

Ronnie London: That's one of the distinctions –

Bob Corn-Revere: He has six million more subscribers for his personal account than he does, or at least –

Nico Perrino: Yeah, but that's built up over the years before he assumed office.

Bob Corn-Revere: Exactly. And so, much more of the government activity takes place on these private accounts; and the question is, are you going to insulate that from any kind of constitutional rules? Or, is the court going to draw a line that gives public officials sort of a blueprint for silencing their –

Nico Perrino: So, is this a petition question? Is this a forum question? How do you think about –

Ronnie London: It's both. It's both.

Bob Corn-Revere: It's both. It raises the question of when the government has created a public forum, which requires it to play by certain constitutional rules, and it also involves the right to petition, in that the constituents of these public officials – the question is whether or not they have a right to weigh in on various government actions, as presented on these private platforms.

And it's really a question of whether or not with public service comes the responsibility to hear your critics; and here, you have public officials in the O'Connor Ratcliffe case and in the Lindke case who simply didn't want to hear it. And so, they started silencing both particular posts by their critics, and canceling them from being able to participate, in certain cases.

Nico Perrino: Ronnie, did you have any last thoughts on this case?

Ronnie London: No, although I do think that even under the Ninth Circuit's test, if you applied it instead of the Sixth Circuit's test to Freed, I think that case still comes out the same way; because if you read the Sixth Circuit's description of how he used the account, it really wasn't to conduct public business per se. It was largely a personal Facebook account where he was doing stuff relating to his family; relating to his personal life; and yes, part of my life is that I have this city position, and I went here, I went there; but he wasn't using it to engage with his constituents, the way that the government officials in the Ninth Circuit case did.

Bob Corn-Revere: I tend to disagree with that. I think that you could argue that it's a close call, but in this case, he was the City Manager of Port Huron, Michigan. He listed all of his official contact information on that. He had a certain number of followers that he had listed as a private account, and then, once he became city manager, there were more people than would be handled under that category, so he went to –

Nico Perrino: Public figure.

Bob Corn-Revere: Public figure page. He also did conduct announcements on COVID policies, and all of that, through his private account. I think you can make a very strong argument that this was the exercise of official business and official power through his private account, and he simply, by using it in this way, was subject to this –

Nico Perrino: So, the use is the important question, here.

Ronnie London: Yes.

Nico Perrino: There's no argument, for example, that James Freed needs to open up all his social media accounts –

Bob Corn-Revere: No, and he –

Nico Perrino:[inaudible – crosstalk] [00:55:00] what he does on his personal time is of interest to citizens.

Bob Corn-Revere: By the way, he has complete ability to separate his private account from the one on which he conducts private business, and one of the reasons why the Sixth Circuit reached this more restrictive test is it said, "We really need a bright line. This nexus approach of all the totality of circumstances is a little too slippery."

Well, the state action question has always been a totality of the circumstances test. You have to look at all of the factors. But if you really want a bright line, the one that the Sixth Circuit drew in saying it has to be this actual or apparent authority test means that you're what you're doing is creating a blueprint for public officials to silence their critics. So, it's a bright line, but not in a good way.

Nico Perrino: All right, let's move on, now, to Vidal v. Elster which is a case involving Steve Elster, who attempted to register the phrase Trump Too Small.

Ronnie London: What could that possibly mean?

Nico Perrino: To put it on various types of shirts. He wanted to register the mark to serve as political commentary on President Donald Trump. This was back in 2018, when President Donald Trump was still president, and the Patent and Trademark Office rejected the application, citing two sections of the Lanham Act: Section 2C which prohibits registering a mark that identifies a living individual without their consent; and Section 2A which bars marks that falsely suggest a connection with living or dead persons.

Layperson right here, can you register a mark for an individual without their consent?

Ronnie London: Oh, without their consent. Well.

Nico Perrino: Wouldn't that be the threshold question here?

Ronnie London: Yeah, this is an interesting case, because this was an application that was filed as intent to use, not actual use. So, before the application was made, it wasn't like there was T-shirts out there with Trump Too Small on it, and it had acquired a secondary meaning identifying the applicant as the source of the goods; because that's what a trademark ultimately is, right? It's an identifier of the source of the goods.

And so, you can you can register someone's name – and in fact, there's a whole body of case law about when somebody uses their own personal name as part of their business, and it acquires a secondary meaning, and what rights you have, and whether you can bump somebody off of your name.

But this is a case, really, about when you want to register a mark, and in doing so, convey some kind of political message, and the person in question is a public official; whether or not the Trademark Office can stop you from registering it and protecting that commentary as a mark designating you as the originator of the good or service, with that message on it.

And so, what it ultimately comes down to is, because of the consent requirement that you mentioned, it becomes a viewpoint discriminatory –

Nico Perrino: You cannot register a right if it has political commentary about an individual –

Ronnie London: Right, because who's going to consent to the criticism? Exactly.

Nico Perrino: Right.

Bob Corn-Revere: Right. Now, there's a broader First Amendment question about whether or not you should be able to, in registering that mark, prevent others from being able to use it, because you've got this broader political purpose. But that's not the question that the Court is focused on here. It's really just whether or not the Trademark Office was violating the Constitution when it refused to accept this mark without Trump's consent.

Nico Perrino: I'm trying to think of a phrase that's taken on political valence in the culture. I think Thanks Obama might be one?

Ronnie London: Let's Go Brandon.

Nico Perrino: Let's Go Brandon. Although it doesn't use Joe Biden's name, it's implied that Brandon is Biden. Thanks Obama, which was an internet meme for a while. Let's say it was originated by some online internet store. Could they register the mark?

I think many of our listeners will just kind of rubbed the wrong way by the idea that perhaps you can trademark someone else's name, even if it's for political commentary. I can understand that. But then, again, if you're allowed to make T-shirts, political T-shirts, and then to not be able to make money off of things that become very popular, like Let's Go Brandon, or Thanks Obama, because anyone else could then make those shirts, because it's about a public figure, and they didn't grant you their consent to trademark that phrase.

Bob Corn-Revere: There's a broader question about what it means to register a trademark, and that is, it doesn't prevent you from using that phrase, or using that shirt. You can produce the Thanks Obama T-shirts if you want to. The question is whether or not, if you try and register a trademark for it, you get the protections provided by the Trademark Act, which means the presumption that your mark is valid; the ability to file suit based on protecting your trademark.

Those are the kinds of benefits that come with trademark registration, and that's the central question is presented here, whether or not this is a restriction on speech, or whether or not it's simply a condition of getting a government benefit.

It's a question that the court has addressed multiple times now, in the past. You might remember the case involving the Slants, Matal v. Tam, where the same argument was made by the government, saying that having the ability to use this disparaging trademark, whether or not that's a restriction on speech, or simply a condition on a government benefit. Now, twice the court has rejected that argument in the Brunetti case and in the Tam case.

And so, now it's coming back in this case, but on a different provision of the Trademark Act.

Ronnie London: Yeah, and the solicitor is making that argument, right? The government is making that argument that it's not an infringement on speech, but I tend to think that ship sailed with Brunetti and with Tam, and that's actually one of the most important parts of Tam, and Tam is a critically important First Amendment case, partly because it talks about what it means to be viewpoint discriminatory. And that is, even something like giving offense can be a viewpoint.

But there's another aspect of Matal v. Tam that Bob just touched on implicitly, and that is, a government regulation doesn't have to necessarily prohibit speech, or stop you from speaking in the way that you want to, even if it simply disfavors the speech by putting it at some kind of disadvantage. Matal v. Tam stands for that proposition. And again, I think I think that ship has sailed. I'd like to believe that she ship has sailed.

Nico Perrino: Matal v. Tam dealt with a viewpoint, though, in a certain sense. Here, we're just talking about a viewpoint neutral –

Ronnie London: The question is, is it a regulation of speech, right? Before you get to –

Nico Perrino: Well, yes, it almost certainly is.

Ronnie London: Well but that, but that's the question here, right? The government is arguing, even now still in Elster, that the refusal to register a trademark is not a regulation of speech or an infringement of speech. So, if that's the right answer, you don't even get to the viewpoint discriminatory question, because you're not regulating speech. And that's why I was saying that Matal v. Tam is such an important case for recognizing that even the disfavoring by not registering the trademark is sufficient government action, and antagonistic to speech; that it's a First Amendment violation.

Nico Perrino: See, I think it's obviously speech. You're talking about registering a mark of someone's name; you cannot say that name, or you cannot get the benefits of trademark protections from saying that name, but it doesn't seem viewpoint discriminatory, to me, in the same way that Matal v. Tam did when you're talking about pejorative or derogatory words and phrases. It's content neutral, or it's viewpoint neutral in that sense. It's just you can't register someone else's name.

Bob Corn-Revere: If I recall correctly, the court didn't accept for review of the question of whether or not this is a viewpoint discrimination.

Ronnie London: That's right.

Bob Corn-Revere: It just accepted the question of whether or not this was a limitation on speech. Now, whether something discriminates based on viewpoint dictates what level of scrutiny the court is going to provide. And the First Amendment is exceptionally hostile to viewpoint-based regulations of speech. There's no question that this is a restriction on speech. The question is whether or not the Solicitor General is right in framing this as merely a benefit, or whether or not it actually has a negative impact on the ability to speak.

Ronnie London: And I think part of what is giving some folks discomfort is that this this particular mark, it's a wordmark registration. And what that means is it's a registration to protect Trump Too Small, no matter what font, what color, what style it's represented in, right? Whereas if, for example, the mark might have been in stylized green script, for lack of –

Bob Corn-Revere: Let's say a Jack Daniels bottle.

Ronnie London: Well, but it was a mark that was limited to – you could use Trump Too Small as a phrase without infringing the mark, if it had been not a wordmark application, so long as you didn't put it in script, and you didn't put it in green, you'd be able to use the phrase. But I think some of the discomfort is coming from the fact that this is a wordmark application, which means the phrase, no matter how written or presented, would get the protection.

Bob Corn-Revere: Which is why, lurking in the background, are much broader First Amendment questions of whether or not there should be the ability to have a trademark like this, that can limit speech generally. But the only question that's being presented here is whether or not this applicant can be prevented from registering this mark because of the consent issue.

Ronnie London: That's right. Yeah.

Nico Perrino: Let's move on to our last case, now, which is Gonzalez v. Trevino, also granted very recently on October 12th; involves a woman, Sylvia Gonzalez, who is a 72-year-old first-time city council member in Castle Hills, Texas. She was arrested because police in that city didn't like that she was advocating for the removal of the city manager, an ally of the police. She was arrested, but the reasons why she was arrested is what's that issue in this case, right?

She had organized a petition for the removal of the city manager that she then misplaced.

Ronnie London: Well, that was her platform. That was the platform she ran on, that she was going to present this petition.

Nico Perrino: Yeah, so, that was her platform as a city council member, that she was going to present this petition to remove the city manager. Well, she lost the petition.

Bob Corn-Revere: Well, she didn't lose it. What's interesting here is that this was at a city council meeting where the petition was presented, and there was a heated meeting. It was going to be convened, hauled over to the next day, and on the platform where the city manager and the council members were seated, there were a bunch of papers; and she apparently just picked it up with the papers, and put it in her folder.

And before the meeting was over, a policeman came over to her and said, "The city manager wants to talk to you," and he asked her, "Where's the petition?" and "Look in your folder." And so, she looks, and he goes – they both agree. "Well, I must have picked it up by mistake," and she gives it to him.

So, if it was misplaced, it was misplaced for a matter of minutes, at most, and because this was not a popular petition with the city manager, as you might imagine, later on she is arrested. He first starts an investigation into the missing petition, when he knew exactly –

Ronnie London: Two months.

Bob Corn-Revere: Yeah, for two months he was investigating this, and then appoints a friend to be a special investigator to look into this. She's eventually arrested, and arrested under conditions where she has to actually spend time behind bars. And ultimately, when it finally gets to the prosecutor, the prosecutor looks at these facts and says this is ridiculous, and drops the case.

Nico Perrino: And she was arrested under a tampering law, right –

Bob Corn-Revere: Right, exactly.

Nico Perrino: – that's hardly ever used, and if it is, it's usually invoked in the cases of fake IDs.

Ronnie London: Well, it's hardly ever used in this context.

Nico Perrino: Right. Usually fake IDs.

Ronnie London: In fact, they presented to the court that they couldn't find any case where this law had been applied and enforced in this kind of situation.

Bob Corn-Revere: To someone who had simply put the petition momentarily in the wrong folder. Now, the issue that the court is being asked to address is whether or not to revisit a rule that had announced a few terms ago in Nieves v. Bartlett, which is a case saying that you cannot bring a First Amendment retaliation case if the police have probable cause to arrest you. You can't sue on that behalf, unless you can show that there are people who have done the same activity and were not arrested.

For example, people are protesting. They only arrest for jaywalking the people who were protesting, but others who were jaywalking who were not protesting – you've got to have these comparables. And that was the holding in Nieves v. Bartlett.

This is the first opportunity for the court to revisit that rule, and ask whether or not it's too restrictive; and here, the question is whether or not, if you have objective evidence that shows that there was a retaliatory purpose, even if there were no other differences in prosecution, can you still bring a retaliation case? I think the answer has to be yes, that you can sue for retaliation when you have facts this stark that showed that there was an abusive purpose behind the retaliation.

Nico Perrino: The Fifth Circuit held that the exception did not apply to Sylvia Gonzalez in this case, because she had not shown comparative evidence of similarly situated individuals who had also mishandled a government petition, but held different views and were not prosecuted under the same law. So, essentially, she needed to be able to show that someone like her had started a petition to praise the city manager?

Bob Corn-Revere: Right.

Nico Perrino: And had misplaced it, and then was prosecuted? It seems like a set of facts that you could never –

Ronnie London: It's a very strict and narrow reading of the Nieves exception.

Bob Corn-Revere: Yeah, and this is kind of like the qualified immunity defense, but on steroids, right? In qualified immunity, you've got to show that the law is clearly established, based on similar circumstances, right? And only then can you have a local official being held responsible – it can be a federal official, too – but being held responsible, because the law is clear. Here, you're saying that to be able to even bring a First Amendment case, you've got to show the exact same circumstances in differential treatment, which is a ridiculously high bar.

Nico Perrino: I mean it's a bar that – I guess, theoretically, you could meet it, right?

Bob Corn-Revere: Yeah, but it would be a welcome opportunity for the court to clarify this area, and hopefully to relax the rule that it announced in Nieves v. Bartlett.

Ronnie London: Yeah. There was a case a little while back, where I think someone got arrested for something like recording in the hallway of a courthouse, and the rule was no recording in courthouses, or something; but everybody was recording, but only this one person was arrested, because they were writing things that were unflattering. I forget the exact facts, but that's the kind of thing you would have to show. You would have to have that stark of an evidentiary basis before you could proceed, and that's an awfully crabbed reading of that exception.

Nico Perrino: So, to close up here, I'd like to get your holistic view on the court taking up all these cases. And to be clear, the court could take up more First Amendment cases, this term. But what do we got here? We got five different buckets of cases? I'm looping in NetChoice v. Paxton and Moody v. NetChoice there, and O'Connor Ratcliffe v. Lindke. A lot of First Amendment cases – and it's often said of the Roberts court that this is a court that is very speech-protective, maybe the most speech protective in the history of the court, as far as the First Amendment is concerned.

You know you could imagine a different era when we would be less thrilled that the court is taking up these cases, at least within FIRE. What's your sense of how these will shake out generally?

Bob Corn-Revere: Well, as I said earlier, I remain optimistic, and I am so generally towards the Roberts Court; although keep in mind that people view the court differently based on their political perspectives. Some people will say this is an awful court because I have a different political outlook than the court.

Nico Perrino: Campaign finance, you see that.

Bob Corn-Revere: Yeah, pick your favorite issue, and however –

Nico Perrino: Religious speech.

Bob Corn-Revere: – but in terms – well, yeah that's a whole other – but I think in terms of the basic First Amendment law, the Court has been really speech protective. I think this past term – we haven't really talked about those cases – but the cases from the past term, while you can quibble with different aspects of the decisions, generally very speech protective, and moving in the right direction. I'm hopeful, notwithstanding, the views of the Solicitor General, that the court is going to get the social media cases right; and if it does that, then it will have accomplished a lot, in terms of First Amendment terms.

Nico Perrino: Ronnie?

Ronnie London: I think that's right. I think that even if you wanted to – for example, looking at the last term – you wanted to criticize the cases that arguably didn't go the First amendment's way; I mean, in Jack Daniels for example, the Court, I guess, could have expanded the test that the Second Circuit adopted for, looking at the First Amendment usage of a mark, a threshold, rather than as part of the likelihood of confusion analysis. All they were saying is, if you are using a mark as a designation of origin, then you have to do the likelihood of confusion analysis first.

And Hanson, I think that I would have preferred Hanson to go differently, but to the extent that it read promoting and facilitating in criminal statutes as the equivalent of aiding and embedding, at least they narrowed themselves.

Ronnie London: To provide just yeah a little background for the Hanson case, This was a case interpreting the Immigration and Nationality Act and whether or not encouraging someone to stay in the country illegally, encouraging or inducing someone to stay in the country illegally, was a criminal prohibition that satisfied First Amendment terms, or if it extended beyond criminal speech, aiding and abetting someone illegally, and whether or not it reached First Amendment protected activity of political promotion, of encouraging people.

The Court held – while it didn't uphold the First Amendment claim against the Act itself, it did say that it had to be interpreted very narrowly, so that it only reached speech that was actually integral to criminal activity. So, it didn't uphold the First Amendment claim, but it interpreted the statute in a narrow way, so that it is more speech protective than it would have been if it had simply said this is close enough for government work.

Ronnie London: So, yeah, bottom line, it's been a fairly speech-protective court.

Nico Perrino: Yeah. The thing that strikes me about this term in particular is how many of these cases are blockbuster cases. Last term, you had a lot of kind of in-the-weeds legal questions, aside from maybe 303 Creative, which was a headline-capturing kind of… you could describe it as a culture war case. Here, you have Murphy v. Missouri the NetChoice cases, even the social media blocking cases, which on their own would make this a very significant term; but they're all coming in the same year

Bob Corn-Revere: I've been practicing First Amendment law for 40 years. One of my principal areas of focus has been the application of First Amendment to new technologies. I have never seen a Supreme Court term that is as consequential as this one is going to be.

Nico Perrino: It's going to be it's going to be a fun review podcast that we do next July, I'm assuming, when we take a look back at the 2023-2024 term. From FIRE's perspective, I hope you are right that this court remains First Amendment protective, and for our listeners back home, I remind you that this podcast is hosted by me Nico Perrino, and produced by Sam Niederhoser and myself. It's recorded by Tyler McQueen and Sam, who are standing behind the cameras over here, and it's edited by my colleagues Aaron Reese and Ella Ross.

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