Note: This is an unedited rush transcript. Please check any quotations against the audio recording.
Darpana Sheth: Hello and welcome to the special live edition of So to Speak. The free speech podcast where every other week, we take an uncensored look at the world of free expression and through personal stories and candid conversations. I’m Darpana Sheth, the Friar‘s Vice President of Litigation and I’m honored to be your host today while Niko wraps up his paternity leave. But don’t worry listeners, Niko will be back in August. So on June 30th, the Supreme Court of the United States wrapped up this ‘22/’23 term, which included several high-profile decisions on free speech.
In today’s episode, we’re going to be diving into those cases and asking big questions like, what do these decisions mean for free expression? And what do they mean for you? It’s a big task, but thankfully my guests today are up for the challenge. Joining me are two First Amendment experts, Ronnie London, Friar’s General Counsel and Bob Corn-Revere, Friar’s Chief Counsel. Before we begin, I wanna remind folks to use the Q and A option at the bottom of your screen throughout the conversation to ask us your questions.
We’ll do our best to answer them as we go and without further ado, let’s dive right in to start with what is arguably the most debated case on free speech this term. And that’s of course 303 Creative verse Elenis. Bob, tell us what is this case all about?
Bob Corn-Revere: Well, 303 Creative was the sequel to another blockbuster case from a few years ago from 2018, Masterpiece Cake Shop versus the Colorado Civil Rights Commission. And the question there was whether or not a cake designer could be compelled under the civil rights law to create cakes that he described as artistic creations for same-sex weddings. In that case, which challenged both the free exercise of religion aspects, and also the free speech aspects of the constitutional matter, decided only the question of whether or not the cake designer’s free exercise rights were violated based on some comments that’d been made by a commissioner on the civil rights commission.
So, that put off for another day, the question of whether or not free speech also applied to this kind of exercise of expression. 303 Creative presented those facts, focused entirely on the free speech question. And this, rather than a cake designer, which raises other questions about expression. This involved someone who was wanting to start a website design business. But also, because of her religious convictions, did not want to be compelled under civil rights law to create websites celebrating same-sex marriages.
The court decided in a 6-3 opinion that Colorado cannot force a website designer to create expressive designs, speaking messages with which the designer disagrees. And in a very forceful dissent, by Justice Sotomayor, joined by Justices Kagan and Justice Jackson, they disagreed.
Darpana Sheth: So, yeah. Let me jump in there and give Ronnie a chance. So, I know David French, former Friar President and New York Times columnist. And others, including me have characterized this decision as a victory for free speech. That protects the right of artist to create and to refuse to create speech of their own choosing So, it basically boils down to a president, the latest in a long line of court rulings prohibiting the government from compelling speech. On the other hand, David Cole, the ACLU’s national legal director called the decision, “Fundamentally misguided.” And has along with others, characterized the decision as a loss for LGBTQ rights. Ronnie, what do you say?
Ronnie London: Well, I think the decision, once you accept its premises is a pretty straightforward application of pre-existing law on compelled speech. Now, that’s a pregnant phrase there, accept its premises, right? I mean, Bob mentioned the Masterpiece Cakes decision from a few years ago that teed up, potentially, a similar question of when could a baker whose wedding cakes that are bespoke and customized to his customers be compelled to make a cake for a same-sex wedding. And there was a lot of resistance along the question of well, is a cake expressive in the first place and whose expression is a cake attributed to?
But the fact of the matter is, in that case, there was a finding in at the Colorado Commission that the cake was in fact expressive. Now, unless it is deemed clearly erroneous in subsequent appeals and subsequent phases of the case, that should’ve governed the case. And yet, a lot of ink was spilled, and a lot of breath was used debating whether cakes are expressive. And here, you had a similar issue where say, well you have someone who wants to design websites for other people’s weddings. Is that really going to – first of all, is that really speech? Second of all, is that speech really going to be attributed to them? Well, those things were stipulated, from the beginning of the case. Right?
I mean, the parties entered into a stipulation that point-blank said, the website is expressive. There is a sincerely held religious conviction by the website designer that a marriage is only between a biological male and a biological female. And that the websites would be attributed to the website designer. Once you embrace that, I think it’s relatively easy to say okay, starting with Barnet where the guiding star of our First Amendment precedent on compelled speeches, we don’t force people to mouth or voice things that they don’t believe and to which they oppose.
On through Hurley, saying we don’t force people to include in their parade, people whose views are directly in opposition to them. Through Boy Scouts versus Dale, on associational freedom, that we don’t force people to include on expressive association, those whom they disagree. It becomes a relatively straightforward decision. The wrinkle here and the one that commentators like David Cole and others latch on to, and obviously Justice Sotomayor, is that this is a service being offered in the commercial marketplace. And therefore, it is a public accommodation.
And once you put yourself out into the commercial marketplace, as a public accommodation, I guess the theory is you somehow lose some modicum, and I wouldn’t argue it’s a modicum, I’d argue it’s a lot. You lose free speech rights to not have to speak in ways that are offensive to your conscience. And part of that rationale is, well no one attributes that speech to you in the first place. Well, maybe they do, maybe they don’t, and we can have a debate about that. And I guess we can keep waiting around until we get a case where everybody agrees that the views expressed are those of the speaker. But that was stipulated here, so you can’t use that as an underpinning for saying the commercial marketplace is different.
Darpana Sheth: So, on that note – oh, go ahead.
Ronnie London: But the fact that speech is sold, rather than given away, rather than putting out a soapbox on the corner and making your views known. That has never been determinative of First Amendment rights and that goes all the way back to newspapers and movies and cable television. So, I don’t find that that’s a very compelling distinction. And when you read the dissenting opinion, which is very compelling in lots of ways, it seems like it’s describing a different case.
Darpana Sheth: I guess following up on what you said, Ronnie. If this was all stipulated, the fact that it is, the website itself is speech. It’s expressive activity. How broad is the ruling? Even Justice Gorsuch, in the majority opinion noted that determining what qualifies as expressive activity, that is protected by the First Amendment can be difficult. So, where is the line between goods and services that’re expressive in nature?
Bob Corn-Revere: Well, I think it’s [inaudible] [00:08:43] that has been characterized by a lot of critics of the opinion. We’re not talking about someone who simply says what I’m doing is expression. You can’t have someone saying, “My barbecue sandwiches are so great, I consider them art and therefore, I can refuse to sell them to people based on their status.” That’s not the issue. I think it’s much narrower than that. First, the product has to be inherently expressive in some way, and in this case, the court reaffirmed that designing websites is an expressive act. But it also has to be customized to the customer. It’s not just something that says, “I saw books of poetry.”
And it’s the same book for every customer. This is something that has to be designed specifically for the customer seeking that service. And the other part is that, the objection to creating it can’t be based on the customer’s status. You can’t simply say, “You’re not of a race that I favor, you’re not of a sexual orientation that I favor, therefore I can refuse to sell to you.” The speech you’re being required to create, that has to be the objection that we’re talking about. Right? That you’re objecting to creating expression, based on what that expression was. Not on a status of the customer. And so, it’s a narrower range of businesses that we’re talking about here and not just anyone who claims to be expressive.
Ronnie London: And it’s always been a feature of First Amendment law when you talk about expressive conduct, having to draw the line between whether something is purely conduct that can be punished or restricted in ways that speech can’t be. I mean, there’s always going to be the need to draw that line and there are always going to be close cases at the margins that are going to be difficult. And so, some, for example, the other cases that are matriculating out of the courts in the same area now are wedding photographers, or wedding videographers. Are those expressive? And actually, you might reach different answers for different aspects of the service.
I mean, is setting up a camera on a tripod, on the side of a wedding and just filming everything that happens to pass the camera expressive or not? Maybe, maybe not. But when you splice it all together and put it in a video that has a narrative of the evening without you having to sit through the entire seven hours but is actually the best 90 minutes that tells you the story of this wedding. I think it’s much easier to say that that’s expressive. We’re going to have some difficult questions that’re gonna have to be litigated out. But at the end of the day, there are expressive endeavors that people provide services to other people and it’s still the speaker’s speech.
Bob Corn-Revere: And you may get a different answer for a different website designer. If someone has simply provided a service where it’s plug and play websites and whoever the customer is can put in their own information, and therefore they all get the same website, essentially. That may not qualify for this same First Amendment protection.
Darpana Sheth: And so, let’s talk about the dissent for a bit. Justice Sotomayor, she does point to that distinction between conduct and expression. And she pointed to the O’Brien case, involving the burning of draft cards. And she also points, it relies in part on freedom of association cases. So, where the supreme court has ruled that there’s no constitutional right for a civic organization to refuse membership to women, or for a law partnership, to refuse partnerships to women because of their beliefs and their expressive rights. So, how do we square those cases with the majority opinion?
Bob Corn-Revere: I think the case, the O’Brien case, there you’re talking about simply destroying of a draft card, whether or not that can be prohibited regardless of whether or not there’s some message attached. And there, what the court focused on in 1968 was whether or not the impact on speech was incidental to the fact that prohibition was on destroying draft cards. Here, as the majority spelled out, the impact on speech is not incidental. You’re actually compelling someone to create speech that delivers a message that you don’t believe in. And so, it’s unlike any of the other compelled speech cases.
If you look at the history of supreme court decisions, you will not find any case where someone has been compelled to create a work of art, create any expressive work that violates their convictions. As far as the freedom of association case goes, the court I think drew a pretty strict line between those business partnerships, those things and organizations that are called, expressive associations. So, it singled out the Boy Scouts versus Dale decision. So, I think those are pretty well distinguished. I think where the dissent goes wrong is in simply characterizing this as a status-based discrimination. If you read the majority opinion, it specifically says that this isn’t discrimination based on status.
It’s not a get out of jail free card for anyone who discriminates based on their religion or whatever else. It really is focused on the compelled speech aspect.
Ronnie London: And in that regard, one of the things that the dissent does, it says this means that any business that can justify it as inconsistent with their personal views and are arguably engaged in any kind of expression or association. All right, I don’t think that’s at all what the majority decision does. And if you wanna play out well, what’re the consequences of ruling this way or that way. I mean, one of the consequences of ruling the way that the dissent would have the court rule is that, you can force anybody engaged in any expressive endeavor in the commercial marketplace to speak in any way that you want them to, no matter how objectionable to them.
I could walk into my favorite kosher bakery in Brooklyn and insist on a cake with swastikas on it. The newspaper, for that matter where it carries third party ads in the classified and on the even full-page ads. Because it offers that service as a commercial service, it would lose all editorial discretion over what ads it has to run. I mean, it would be a pretty wide-ranging consequence to say, once you put yourself out in the stream of commerce in providing a service, even if it’s expressive, you cannot exercise any editorial discretion. And you can be forced to speak in any way that your customer desires, regardless of how offensive it may be to you or your conscience.
Bob Corn-Revere: And Darpana, when you framed the question you mentioned that Justice Sotomayor’s dissent characterized this as conduct. And I think that’s a pretty telling way to put it. Whenever someone who is interested in playing down the First Amendment angle of a case, one of the first techniques they will use is say, “Well, this isn’t speech. This is conduct.” But one of the things that the court affirmed is that you cannot separate the conduct speech elements of website design and say you’re only regulating the conduct. And in that regard, there are a number of collateral First Amendment principals that were affirmed in the course of reaching the ultimate decision.
That was one of them that we’re talking about, regulating speech. Another is that, we’re applying the basic principles of the First Amendment, as historically understood, even to newer technologies. As Justice Gorsuch wrote that 100 years ago, these things might’ve been done on paper and ink. But the fact that it’s being done through website design today doesn’t alter the constitutional calculus. It reaffirmed the basic prohibition against compelled speech. And then finally concluded the public accommodation law doesn’t trump those First Amendment principals, while keeping that fairly narrow.
One of my concerns about how this has been characterized in the press and the debate is to focus this as a culture war decision, saying that it is anti-LGBTQ. That it is anti-gay. And in fact, I think that was really the focus of Justice Sotomayor’s dissent. I think in that regard, it pays to remember that just three years ago, Justice Gorsuch was being [inaudible] [00:17:41] for having drafted the opinion in Bostock versus Clayton County, Georgia.
Which the supreme court held that Title 7 Anti-Discrimination Law applies by its terms, to protect LGBTQ individuals and transsexuals. And this is not an instance of where you have a rogue supreme court, trying to weigh in on one side or the other of the culture war.
Darpana Sheth: Great. We have a couple questions here in the queue I wanna get to. Somebody asked, we touched on this a bit but what about the argument that the requested designs weren’t actually tailored speech, but that the objection was the design would be used in a way the designer didn’t like. So for example, a designer’s standard website design being used for a gay marriage, even though it doesn’t mention gay marriage.
Bob Corn-Revere: Well, that was part of the stipulation that we’re not talking about, the something being a standard design. It was stipulated that there are expressive designs in which the designer collaborates with the couple, creates a message specifically tailored to them and where the artistic work of this designer would be recognized as part of the overall creation. And the court concluded that when you combine elements of speech, just because of the fact that it includes someone else’s speech and yours, doesn’t diminish the level of First Amendment protection.
Darpana Sheth: Great. Ronnie, any last thoughts before we go to the next case?
Ronnie London: I think I saw one question about the communications clause in this case. There are two parts of, excuse me, Colorado’s law here. One says that you can’t refuse to provide the service. The other says that you can’t say that you refused to provide the service. And the court basically decides that once we rule that is unconstitutional, to compel someone to provide the service, saying that you don’t provide it becomes a true statement of the commercial offering. And as goes the accommodations clause, so goes the communications clause.
Bob Corn-Revere: Yeah. If I could just add one final thought on 303 Creative and that is, one of the other criticisms has been to say, this isn’t a real case. That this wasn’t someone who’s actually already in the business. They were, the stipulated facts were based simply on what was proposed to be the business. But the reason that the designer brought the case was because it was pretty clear from the way that the Colorado Civil Rights Commission was enforcing this public accommodations law, that if she operated the business the way she proposed to, that she would be facing legal jeopardy.
So, she brought an action to have her legal rights declared in court. Now, for those who complain about that hypothetical case, as you might frame it. That’s a pretty standard process for pre-enforcement challenges in civil rights cases. Where you will have a litigant wanting to find what their legal rights are and to declare their rights, particularly under the First Amendment. So, I find that aspect of the decision not troubling at all.
Darpana Sheth: And again, the stipulated facts that Ronnie mentioned come into play there because Colorado agree that yes, we would actually enforce this law against her if she did what she wanted. The next case [audio cuts out] [00:21:11] so, 303 Creative involved a civil fine or civil punishments. The next case involves when speech can be punished as a crime. So, in Counterman verse Colorado, the court addressed the question of what level of mens rea, or culpable state of mind, is required to make a true threat of violence. Which of course, is outside the bounds of the First Amendment and it’s punishable as a crime.
So in this case, Billy Counterman had sent hundreds of Facebook messages to a local singer and musician. Some mentioning violent harm to the recipient. And when the musician blocked Counterman’s messages, he created new accounts and just resumed sending more messages. As a result, she was reasonably, objectively, reasonably afraid and she cancelled some performances. She stopped walking alone and took other actions. Colorado charged Counterman with violating a state stalking statute that prohibited, “Repeatedly making any form of communication with another person in a manner that would cause a reasonable person to suffer serious emotional distress.”
In an opinion by Justice Kagan, the majority ruled that in these true threat cases, the First Amendment requires that the state prove that the defendant had some subjective understanding of the threatening nature of his statements. But the First Amendment does not require anything more than recklessness. What does recklessness mean and can you talk about why the court decided this was the right level of intent or standard. Especially since as the concurrence and dissent both point out, that standard wasn’t even addressed by the courts below or the parties. It was just raised in an amicus brief, the tail end of the Solicitor General of the United States’s amicus brief as an alternative argument.
Ronnie London: Now, before we get to the standard they ultimately adopted, I wanna say, this is a fascinating case for me. Because we talk about that there are categories of speech that are unprotected, and we can all rattle them off. Obscenity, child pornography, true threat, incitement, on and on. We know what the list is. And the court doesn’t hold that this speech isn’t a true threat. What it says is that first of all, when you’re talking about a true threat which is a realistic threat to enact unlawful, physical harm on a specific group of people or a person, that is a true threat. That’s unprotected by the First Amendment. They distinguish that from things like hyperbole, jokes and jest.
Which by the way, by itself is an important distinction that the court makes on its way to getting to its outcome here. But they don’t say, this doesn’t satisfy the standard for true threat. But none the less, the conviction can’t stand because even with a true threat, which is unprotected. Now, I’ve always understood unprotected speech to mean that it’s open season on restriction, punishment, whatever the case may be. But what the court says here is, even when you fall into this unprotected category, we still have to impose some kind of mens rea in order to avoid the chilling effect. Because if you make a mistake, you wind up in jail otherwise.
And people would steer far wide of the danger zone, and it would have a significant chilling effect if you couldn’t make an honest mistake. And the court ultimately arrives at the decision that yes, the standard here is not the objective standard of, would a reasonable person by threatened by this speech. But rather, what is the state of mind of the speaker? And as you said, Darpana. They determined that yes, it has to be a subjective standard, based on the state of mind of the speaker. And it has to be at least reckless. So, that means that it has to be at least intentionally threatening or reckless.
And what that means in this context is, the speaker has to know that there’s a realistic chance that someone to whom they direct the speech is going to find it to be a threat, but they opt to proceed, nevertheless.
Bob Corn-Revere: Yeah, I think the implications with this are significant, not just for the question of what constitutes a true threat and therefore is beyond the protection of the First Amendment. The court generally discusses the various categories of unprotected speech. And Ronnie had mentioned, listed what they were earlier. And said that in every case, you have to have some level of guilty mind, the mens rea. An intention to create this risk of whatever the bad speech is. And so, it’s an important decision in that respect because it does reserve that level of breathing space for speech before you can prohibit it or make someone a criminal for stating mere words.
But beyond that, because it talks about these categories generally and uses the, “Reckless disregard standard,” borrowed from New York Times versus Sullivan and defamation law. It does the important service of showing that at least seven justices on the court or, maybe six and a half if you count Gorsuch’s reservations in this regard. But a majority of the court essentially reaffirms the standard in New York Times versus Sullivan.
Darpana Sheth: And that’s a good point, Bob. The way the opinions break down, we have the dissent, so Justice Barrett joined by Justice Thomas, who would’ve upheld a lower objective standard.
Bob Corn-Revere: Yes.
Darpana Sheth: While Justice Sotomayor and Gorsuch urged a higher standard, in general true threats cases, not necessarily this one. So, why is it that, who has the better argument and why is the objective standard not the right standard here?
Bob Corn-Revere: Well, the objective standard is not the right standard because whether or not you’re a criminal depends on, entirely on what may be happening in somebody else’s mind, right? And so, if you’re talking about the chilling effect of criminal prohibitions on speech. That can be an awfully daunting task. If someone generally may get the impression that what you’re saying crosses the line. The dispute among the justices and the majority were, how much protection to provide. And here, it was a very interesting breakdown in terms of, and not entirely easy to tell which one was more speech protective or not.
The majority written by Justice Kagan basically said, first you have to have that mental state requirement. But secondly, recklessness is enough and then went through a discussion of the varying levels of intent, mens rea that might be required. Either a specific intent to provide a true threat or knowledge that it is a true threat. And finally, recklessness and suggested that that was enough. Justice Sotomayor, along with Justice Gorsuch wrote this interesting concurrence in which they said no, we need more protection. We just don’t have to decide as much in this case because this is a stalking case, not really a true threats case.
And reckless disregard would be just fine for stalking. In very much the same way in which she had in 303 Creative, she turned this into a case about conduct, not about speech. And so then, said a lower level of mens rea would suffice. So, between the majority, the opinion of the court and the concurrence, it’s a little bit hard to say which is more speech protective. Given how her opinion got to where she got. But the good news overall is that seven justices agreed that there has to be some showing of intent. And that it should be set at a fairly high bar.
Because even if you’re just talking about general recklessness. The opinions talked about how in the speech area, as in New York Times versus Sullivan and reckless disregard. You do take into account the fact that you are dealing with speech when you’re talking about knowledge and recklessness.
Darpana Sheth: And so, does that [audio cuts out] [00:29:54] apply only to criminal statutes or are there any implications for civil harassment?
Bob Corn-Revere: No, it’s true for both.
Ronnie London: Yeah. I mean, and it’s hard to argue, I think that necessarily, the standard here should be actual knowledge. I mean, the reason we have the Sullivan test that we have is that when you’re talking about public officials, we wanna have robust, fully exchanged of views. And we don’t want people being nervous that they’re gonna get sued for liable if they happen to make a non-material mistake or if they happen to say something that is inaccurate. And so, if reckless disregard is sufficient for the rough and tumble of political debate, I would love to see a knowledge standard.
But it’s hard to get real upset over saying well, something that a reasonable person might perceive as threatening somehow gets even more protection than the rough and tumble of political discourse. So, I think we can be pretty happy with the reckless disregard standard here.
Bob Corn-Revere: I agree. And there was a lot of interesting back and forth in the opinions between how you should set the levels when you’re talking about obscenity, versus incitement, versus true threats, versus defamation. And it can be difficult to draw the lines between those different categories of protected speech. But the one common element here was that the majority decided that we do have to have some level of First Amendment protection across the board for these unprotected categories.
Ronnie London: And had the court not gone out of its way to stress that hyperbole or jokes or other discourse of that nature doesn’t satisfy the true threat standard in the first place, I would be more exercised about the fact that they didn’t go with actual knowledge. But because they took that entirely off the table before deciding what the standard was, I think that was an important carve-out.
Bob Corn-Revere: But there’s still, I agree completely with that. I think there is still some room for confusion here, particularly in Justice Sotomayor’s concurrence. Where she talks about the importance of having a high standard because you have the internet where people can’t really get a sense of nuance, or you don’t really get a sense of sarcasm. And people can be inadvertently turned into criminals.
And yet at the same time, she treated posts on Facebook that consisted of nothing but words, and none overtly threatening as being stalking. And so, you get mixed messages here where you’re seeing where she wants to have a higher level of protection for what are called true threats. And yet, she will downgrade the level of protection, even for just mere words by characterizing them as conduct. So, it’s hard to know what the ultimate answer is on how much protection you get.
Ronnie London: Well, and it’s interesting. She’s not alone. I mean, I was on the local news in Denver in the wake of the decision and the interview that I did ultimately wound up being spliced in alongside some comments from the Colorado Attorney General. Who by the way, had a terrible last week of the term between 303 Creative and Counterman. But his position was, the court just crafted a massive loophole in stalking laws. Which I think is – I know, he’s wrong. I’m gonna say why he’s wrong. I think it’s a very short-sighted way of looking at this decision. I mean, the thing is, very rarely is stalking based on the content of the communication alone.
It also happens to involve the frequency, the unwanted nature. Sometimes it's the time. I mean, you can punish someone for harassing phone calls if they call you repeatedly in the middle of the night and hang up without saying anything. It’s still harassing phone call. This number of unwanted Facebook messages, even after the recipient went out of her way to unfriend him and to block him and he opened new accounts in order to get around that. I mean, by the way, just bear in mind. This decision, the net result isn’t, he goes free. You can’t bring this prosecution. The net result of this decision is, applying this subjective standard, run this trial again and see what happens.
Bob Corn-Revere: Right.
Ronnie London: So, before we start making pronouncements about what this does to stalking law, let’s actually try this for a while and see what the result is.
Bob Corn-Revere: And that underscores the fallacy of making these broad pronouncements of both of these decisions so far. Either in terms of discrimination law or in terms of stalking law.
Darpana Sheth: Unless there’s additional comments you wanna make on that, I thought I’d turn over to another case involving the level of mens rea and when speech can cross that line into becoming a crime. And this is United States verse Hansen. In this case, Hansen had scammed hundreds of non-citizens by promising a path to US citizenship through so-called adult adoptions. In doing so, he earned nearly $2 million from his scheme. And he was convicted of violating a federal immigration law that prohibits encouraging or inducing illegal immigration. Hansen had moved to dismiss the conviction, claiming that the provision was unconstitutionally overbroad.
And I guess as listeners may be aware, courts will strike down statutes as overbroad on their face if the law prohibits a substantial amount of protected speech, relative to its, “Plainly legitimate sweep.” And the reason is because our society deems that our interest in free expression outweighs the interest in lawfully applying that statute. Otherwise, courts have to do what they usually do, which is address matters on a case-by-case basis, instead of striking down the entire statute on its face. So in this case, the court found in a 7-2 decision that the provision was not unconstitutionally overbroad. Ronnie or Bob, tell us why and what you think.
Bob Corn-Revere: The court essentially took the work of congress and the Immigration and Nationality Act and said that we’re not going to analyze it by the plain meaning of the words that congress used. Instead, we’re going to assume that congress intended to import the common law and statutory history of these concepts of encouraging or inducing to say that this is merely really an aiding and abetting law. Which has a much narrower meaning in the law. So that, this law which forbids encouraging or inducing an alien to come to, enter or reside in the United States, knowing or in reckless disregard, there’s that term again. Of the fact that such activity is or will be a violation of law.
The petitioners in this case had argued – I’m sorry, well the defendant and then the respondents coming up to the supreme court, argued that the law was written so broadly. Even though they conceded that the law really did apply to their scam, but the law should be declared unconstitutional on its face because it was overbroad. Argued that that language could be read so broadly as to apply to a grandmother who tells her undocumented grandson, “I really want you to stay in the United States and be with me, even though I know that legally, you should go back to Mexico.”
Or any number of other words of encouragement, that that law would reach them and therefore it was unconstitutionally overbroad. But the court said no, we’re not going to read it that broadly. Instead, we’re going to use the specialized terms of criminal law. And interpret it much more narrowly and say, and therefore, the scope of the law is not overly broad. It’s both good news and bad news from a constitutional perspective. The good news is that congress, I mean the courts are imposing some discipline on a congressional enactment by interpreting it much more narrowly, so that the law has a narrower application. And therefore, doesn’t threaten protected speech as much.
The bad news is that it’s bad civic hygiene. In that it encourages congress to be not very precise and sloppy in its drafting, so that it can simply put together laws that if you read them from a layman’s perspective, which most people do. You will assume that the law reaches a lot of activity that it may not reach. And so, while it would be better to have congress be more careful in its drafting, at least here we have the court narrowing the focus of the law.
Darpana Sheth: And that’s – oh, go ahead. I was just gonna say, that’s what the dissent points out here, that this interpretation encourages and induces or just violates ordinary principals of statutory interpretation. How one should interpret, how a court should go about interpreting statutory language. But the majority says it’s an issue of constitutional avoidance. If we don’t have to decide a constitutional question, we shouldn’t. We shouldn’t overreach and decide constitutional questions if we can avoid it through a narrow interpretation. Ronnie, what do you say?
Ronnie London: Yeah, I mean they’re talking about that in the context of a tool of statutory construction. And it’s funny, you mentioned how a layman would read it. I always wonder, you get elected to congress and some of the people from congress are Harvard and Yale Law School graduates. And some are people who never encountered the law prior to being elected, potentially. And I always wondered, so all these people are gonna get together and they’re gonna write statutes. I mean, who teaches them to write statutes?
And I really don’t know how to react to a case like this because on the one hand I am, gratified probably overstates it, comfortable that the court is saying, when congress uses terms like encourages or induces, or promotes or facilitates, it necessarily means aiding and abetting. And you actually have to satisfy that known and true standard in criminal law, in order to be swept in within the scope. I don’t know why on the other hand, it shouldn’t suffice for the court to simply say, I’m using this case or another case as an example. Say congress, when you mean aiding and abetting, write aiding and abetting. You know how to use it, it’s in any number of statutes that you’ve written.
The only thing you’re doing by using what are arguable synonyms, and maybe they’re not. And certainly, they’re not necessarily synonyms to again, the lay reader who has to comply with these laws. Is you’re sowing confusion and creating a chilling effect. So, I am uncomfortable with what the court’s done here. And the tools of statutory construction that the dissent brings to bear, I think, are all being applied correctly. I mean, it’s not like Justice Jackson is doing anything –
Bob Corn-Revere: [Inaudible] [00:41:21] meaning.
Ronnie London: Well, yeah. They all bypass that one. I mean, we have these tools of statutory construction and unfortunately, courts use the ones that are most suited to getting to the outcome that they wanna get to. And constitutional avoidance, as you mentioned Darpana, is one of them right? If you have two interpretations of a statute, one is constitutionally sound and the other raises grave constitutional questions. Well, you go with the former one. And that’s what the court’s done here. I guess the one thing I would say is, I wanna see the court do this uniformly with every similar statute that comes before, going forward now. Because they should be held by this.
Bob Corn-Revere: But that’s what I mean by good civic hygiene, right? That we have predictable rules that people who have to apply with laws can understand. One of the things that Justice Jackson points out is that it’s all well and good to have a court interpretation. And based on constitutional avoidance, that narrows the statute. But that doesn’t do you any good if you’re the first person to be prosecuted because, right? You’re the one, you’re the unwary citizen who’s been trapped by the general meaning of a law that you couldn’t have anticipated.
Darpana Sheth: And I think in this case, if I’m not mistaken, the language that’s adopted by the majority was once adopted by congress but then they removed it and substituted later [inaudible – crosstalk] [00:42:51] –
Bob Corn-Revere: Well, that’s right. And that was a mystery in Justice Barrett’s majority opinion. Where she says, “Yeah, they did delete that language over time.” Which one way of looking at that from a statutory interpretation standpoint is that the congress meant to broaden the law by taking out some of the limiting language. But she said, “No, it was just streamlining.” So, we know generally if we use these criminal law concepts, it applies to this narrower concept. But that narrowing language that congress deleted, don’t pay any attention to that.
Darpana Sheth: Right. If there’s, do you have any other thoughts on that? Otherwise, we’ll turn to the related cases of Twitter verse Taamneh and Gonzales verse Google? In both of these cases, families of those killed in ISIS terrorist attacks. There was a 2017 attack in Istanbul and a 2015 attack in Paris. And the families brought suit under the anti-terrorism act, alleging that social media giants like Facebook, Twitter and Google, which also owns YouTube, provided material support to terrorist organizations. And aided and abetted ISIS in the attacks.
The plaintiffs argue that the social media platforms knowingly allowed ISIS and its supporters to use the platforms and its recommendation algorithms as tools for recruiting, fundraising or spreading propaganda. And that they’ve profited from ads placed on ISIS’s tweets, posts or videos. The supreme court ruled that this all failed to state a claim. Can you tell us about the court’s ruling and its significance?
Ronnie London: Well, this is one of the reasons why I wanna see the court held to what it did in Hansen, right? If court is gonna say, any time congress uses words like encourages, promotes, facilitates, it’s gonna mean aiding and abetting. Well, I want it to mean aiding and abetting, as they say in Twitter and Taamneh. Because they make very clear that for purposes of online services, simply making an online service generally available to the public and having some segments of the public misuse it or use it for nefarious purposes doesn’t make you an aider and abettor of that nefarious purpose. Even if, as you say, you are monetizing the service in a way that you collect money directly from those users.
The court was very clear that not only would Twitter or Google or any of the other defendants on this case have to do more than simply make the service available, it would have to tie that something more directly to the specific injury that a plaintiff suffers, right? Not just that there are users who put the services to use for terroristic purposes. But that a specific perpetrator of a terrorist act used the service and Twitter or one of the social media platforms actually took steps to rise to the aiding and abetting level and intent to actually further that specific criminal act before there can be liability.
And that’s a pretty significant hurdle to have to clear to hold someone liable for aiding and abetting. Especially when it comes to speech. It’s interesting, these cases came to the court as being the cases that were gonna finally decide the Section 230 question on the immunity that online platforms enjoy. And it was going to get into whether that immunity is necessary from a First Amendment perspective or anything else. This decision doesn’t even mention the First Amendment.
And it says we don’t have to reach the Section 230 question because you only reach a Section 230 question is there’s potential liability for the online communication service. And here, you can’t have that because it doesn’t rise to the level of aiding and abetting. This is a very speech favorable, very online speech favorable decision.
Bob Corn-Revere: It is, and to a certain extent it means the theme of this term had to do with mens rea and culpability for speech. If you read this in combination with the Hansen case and to a certain extent, Counterman as well, talking about mental states. This sets a really high bar for being liable for speech, and in particular third-party speech in the case of the online cases. As Ronnie pointed out, these cases, the Taamneh case and the Gonzales versus Google case that were argued together in the lower courts and came to the supreme court were the ones that were billed as determining the future of Section 230. Which provides for immunity for third party speech for online platform.
A ton of amicus briefs were filed on both sides in the case. And ultimately, the most important of these decisions was the Taamneh decision, which set a high bar in recognition of the fact tat social media platforms deal with oceans of information. There are something like 500 hours posted on YouTube per minute. And whether or not you’re gonna make someone who services the platform be responsible for that. You should have a high bar before they are considered to be criminally culpable.
And the court in Taamneh and Twitter said that you have to have the same level of culpability for aiding and abetting, which indicates both that a criminal act happened, that the platform had knowledge about it and provided substantial knowing assistance to that. And just found that as a general-purpose website, it couldn’t be held responsible any more than someone who provides email service or phone service or any other platform of communication. You have to have more before they can be criminally culpable. When you combine that with the other decisions on mens rea, I think it’s hugely significant.
And just as a one final point on that, this is an area that has not received the same level of significant attention from the court in the past. It has looked at other aspects of first amendment and culpability. But there hasn’t been a lot of discussion throughout the court’s history on what is required for the levels of mens rea, intent and all of that. And so, this has been I think a highly significant term and one that is largely speech protective.
Darpana Sheth: Great. And this, I guess both of those decisions are also somewhat related to a pair of cases that were on the docket but not resolved this term, the NetChoice cases. Where the issue is whether the First Amendment prohibits viewpoint, content of speaker-based laws restricting select websites from engaging in editorial choices. About whether and how to publish and disseminate speech. Thoughts on how I guess, the 303 decision and all these, the cases this term on mens rea and online expression, how do you see that affecting the NetChoice cases, which will be decided next term? Or argued, not decided.
Bob Corn-Revere: Oh, we don’t know that they’ll be decided, we assume they will be decided.
Darpana Sheth: Yeah.
Bob Corn-Revere: At this point, we have decisions on two different state laws, one in Texas, one in Florida regulating online platforms. And the question is whether or not they have First Amendment protected editorial rights of their own. Because we have the split in the circuits and because it’s such a significant issue, I think the smart money is on the supreme court taking this case. And you have the decisions this term laying groundwork for that in a way, but I don’t think they tell us which way the court will go.
So for example, in the Taamneh and Google versus Gonzales cases, you have the court being sensitive to the First Amendment concerns. What happens if you impose liability on these platforms. And in 303 Creative, you have a decision affirming that website design is First Amendment protected activity. So, that can provide a background for it so that if the court takes those two cases, the two NetChoice cases next term, then I think you have a good foundation on which to argue that the First Amendment will protect them.
Darpana Sheth: Ronnie, thoughts on the NetChoice pair of cases?
Bob Corn-Revere: Yeah. No, I mean they almost have to take at least one of them and if you’re taking one, you may as well take both. Because otherwise, what you have is a situation where in Florida, the social media platforms can still make editorial choices, but in Texas they can’t. At least a large social media platform. I mean, that can’t stand. That’s no way to run First Amendment. That’s no way to run a social media platform. That’s no way to run a country, quite frankly. But I do like the fact that in 303 Creative, another online speech case, the idea of compelling speech by someone, even when they are opening their services to the public. It’s none the less anathema.
I mean, one of the things that I’ve seen talked about on 303 Creative is hey, wait a minute. We didn’t go through any scrutiny analysis. You didn’t say whether it was strict scrutiny or immediate scrutiny. You didn’t see if there was a compelling government interest. You didn’t see if the tailoring was right. I mean, what’s going on here? And I think the short answer to that is, is that compelled speech can, outside of the commercial context where you can have disclaimers, compelled speech really ought to be a non-starter.
It should never be a legitimate government interest, to force a private speaker to mouth the words that the government prefers. And it’s almost like it doesn’t matter what level of scrutiny you apply. The fit can never be good enough to compel someone to speak in that way. And if that is what’s going on underneath the hood, so to speak in 303 Creative, I think that bodes well for free speech advocates who are concerned about the state coming in and telling social media platforms what they must allow on their platforms.
Darpana Sheth: Great. So, we have about five minutes to go. So, maybe any Bob, you had mentioned the big themes of this term. Ronnie, do you have any big takeaways or patterns or things you’ve seen coming out of this term?
Ronnie London: Well, it’s interesting. They got all the way through 303 Creative without really talking to much about the fact that it was a religious objection to the speech that would have otherwise been compelled. And I was glad to see that because I mean there were some concerns last term with the Bremerton decision, the case of the coach who wanted to kneel and say a prayer during the interregnum between the end of high school football games and him having to go back into the locker room with his team.
And there was almost a suggestion of, there was double protection there because of free exercise and a free speech interest at stake. They didn’t do that here. I think that is somewhat reassuring. The case is I think, if there’s a theme I mean, this has been a very speech protective court. You may not always like the outcome, depending on what your political valiance is and what the issue of the day happens to be. But the court’s been very speech protective, and I think that’s encouraging as well.
Bob Corn-Revere: Yeah. And there are some implications for lower court decisions as well. The Counterman decision saying generally across the board, there has to be a showing of intent before you can impose liability on protected categories of speech. That’s going to have implications for decisions like the Doe versus McKesson decision out of the Fifth Circuit, which involved trying to impose negligence liability on a Black Lives Matter organizer because of a policeman who was injured during the course of the campaign. The argument being that he was, the organizer was negligent in not anticipating that organizing this protest would result in injury.
And in the course of reaching that decision, the Fifth Circuit said, “There doesn’t have to be any showing of intent here. The supreme court has never said that.” Well, now they have. And so, decisions like that will impose an obligation to impose intent at some level, to anticipate that there will be harmful consequences.
Darpana Sheth: Great. And any predictions about next term, what’s to come? Little preview?
Bob Corn-Revere: Other than the fact that we expect them to take the NetChoice cases, it’s hard to say.
Darpana Sheth: All right. Well, I give you last concluding remarks, Ronnie or Bob. Looking if there’s any other questions in the queue.
Bob Corn-Revere: For me, I’d just like to point out that this court has continued to be a very protective court when it comes to First Amendment interests. Even though that can be characterized as partisan, for people who wanna paint the supreme court or courts in general as either pro-conservative or pro-liberal. I think that the court does chart a non-partisan, non-politically partisan position, particularly when it comes to free speech matters. And even though the popular discussion of these cases sometimes gets painted in culture war terms, I don’t think that’s the way the court is deciding these cases.
Darpana Sheth: Yeah, on that note, I mean not just in the free speech context, but I thought this term we saw a lot of decisions, even in the free speech context, there were 7-2 decisions. It wasn’t just strictly down political ideology lines. You just see 6-3 with all the conservatives or right of center justices against the more liberal wing of the court. So, I thought that was especially significant this term and something to keep an eye on.
Bob Corn-Revere: Well, I think that’s true and if you look at the voting alignments among the justices, they don’t break down among partisan, predictable partisan lines in the way many people might expect. There are also the decisions that run counter to what some would describe as the conservative agenda. So for example, the case involving the Harper case, involving the basically, the state legislative decision over elections. Saying that it’s not left simply up to state legislatures to set the rules for elections. They are subject to constitutional review. Upholding aspects of the civil rights act as well. The decisions this term are not strictly partisan in the way that some people are characterizing.
Darpana Sheth: Great. Well, thank you so much for joining me. I’m glad you get to give your take; I get to hear from our First Amendment experts at Friar and we’ll stay tuned for more in the next term.