Note: This is an unedited rush transcript. Please check any quotations against the audio recording.
Nico Perrino: Alex, thanks for coming to FIRE’s headquarters today.
Alex Abdo: Thanks so much for having me.
Nico: It’s been a little bit of a busy morning for you, hasn’t it?
Alex: It has. I was talking to your very engaged and inquisitive interns.
Nico: Yeah, as I was just telling you. I was an intern about ten years ago and our offices were nothing like this. We didn’t get lunches like they got, so thanks for coming down here from New York, right, you’re at the Knight First Amendment Institute?
Alex: That’s right, up at Columbia University.
Nico: And before that you were at the ACLU.
Alex: That’s right, for about eight years for basically the entire Obama administration and a little bit of the Bush administration on the front end.
Nico: And what was your focus there?
Alex: For the first four or five years the focus was mainly on post 9-11 treatment of detainees, so lawsuits challenging the government’s use of the so-called enhanced interrogation techniques –
Nico: So, not the Guantanamo Bay stuff?
Alex: Some stuff related to Guantanamo and I did some monitoring of the commissions as lawyers at the ACLU did at the time and still do actually. So, would go down and monitor some of the proceedings, but mostly focused on treatment issues. So, transparency related to treatment and actual lawsuits filed on behalf of victims of some of the intelligent agencies’ torture programs.
Nico: And you did a little bit of privacy work as well if I’m not mistaken.
Alex: That’s right. The last four years of my time there I shifted focuses a bit toward NSA surveillance at the beginning and that subject obviously had a huge change in terrain after the 2013 Snowden disclosures.
Nico: But you were working on it before then?
Alex: I was working on it beforehand and, you know, really to work on NSA surveillance issues before Snowden, you weren’t actually working on surveillance issues. What you were working on is legal standing, trying to demonstrate that your clients were entitled to sue the government to challenge the surveillance that you thought you were challenging, and the main case that we were litigating before ended up being five years of litigation that resulted in a 5-4 decision by the Supreme Court holding that our clients did not have standing, and that was a few months before the Snowden disclosures which changed everything going forward.
Nico: Yeah, I’m kind of curious of how that changed things. So, what did you know before the Snowden disclosures and what didn’t you know before the Snowden Disclosures? In short, what changed?
Alex: Yeah, so really there are changes on two axes, so in terms of what we knew, we knew hardly anything prior to the Snowden disclosures about what the NSA was, in fact, doing. The program that we were focused on challenging was one that the NSA was running under Section 702 of FISA which is the warrantless wire tapping authority that the NSA has that –
Nico: And FISA is Foreign Intelligence Surveillance Act?
Alex: That’s right, yeah, and we knew what the statute said and the statute spoke in broad generalities about giving the NSA authority to conduct surveillance that was targeted at foreigners abroad, but it didn’t say anything about the way in which the government could carry out that surveillance. All of that was left to the foreign intelligence surveillance court, the FISA court, to approve, once the government came to that court with targeting procedures and minimization procedures that it would use to implement the surveillance. So, that’s all we knew. We knew that a statute and –
Nico: And you didn’t know what was happening in these courts because the proceedings are private.
Alex: That’s right, and occasionally that court would publish a significant legal opinion, but up to that day I forget how many opinions it had published. I think you can probably count them on one hand. Since then they published maybe a dozen more. So, that’s what we knew in terms of the actual surveillance that was going on; almost nothing. We knew absolutely nothing about another surveillance program that turned out to be the one that Americans reacted to with the most outrage after the Snowden disclosures, and that was a program under which the NSA was collecting Americans’ call records on an ongoing daily basis.
We had no inkling that that was taking place. So, that was one axis, what we knew about the facts on the ground. The other thing that changed is this question of legal standing. Prior to the Snowden disclosures we could not prove that anyone in particular had been subjected to NSA surveillance, and we argued that that didn’t matter. We argued that we could still challenge their surveillance on behalf of people who were the most likely people to be swept up in the NSA’s surveillance.
Alex: And ultimately the Supreme Court disagreed with us in a 5-4 decision in February of 2013, and then a few months later Snowden happened. All of a sudden, we learn a lot more about the NSA’s call records program about which we knew nothing. We learn a lot more about Section 702 of FISA and how the government is implementing it. It turns out they were implementing it through Prism and Upstream which were two –
Nico: Programs –
Alex: – surveillance programs. They’re very different, but two important surveillance programs, and the most significant legal affect is that all of a sudden we could sue. So, the very first order that Snowden – that the journalists who were working with the Snowden documents published, was one directing Verizon business to turn over the records of its customers on an ongoing daily basis to the NSA, and it turned out that the ACLU was a customer of Verizon business.
Nico: Oh, so you had standing.
Alex: So, the ACLU had standing. Not even just on behalf of a client, but the organization had standing, and disclosure came, I think, on a Wednesday evening, June 5th of 2013, and the following Tuesday we filed a lawsuit on behalf of the ACLU and the New York affiliate challenging the lawfulness of the NSA’s call records program.
Nico: And did you get over that standing hurdle?
Alex: We did. The government still made a standing argument. It was a different one –
Nico: Yeah, I assume.
Alex: They still made a standing argument, but the court rejected it, and that was, I think I’m correct, the first time in a civil suit challenging NSA surveillance where a court found that the plaintiff had standing. In the criminal cases, the government occasionally discloses that it’s monitored you because they’re required to by statute. If they want to use the fruits of their surveillance against you, they have to tell you that, but that pretty much gives the government the discretion to decide if and when its surveillance will be challenged and by whom, and we thought a civil suit was very important because the statute that we’re challenging raised a lot of issues that were not likely to get addressed in the context of a criminal proceeding.
Nico: And what was the affect substantively from the lawsuit? Were you able to change any of the NSA programs, get them ruled unconstitutional, or did that happen on the regulatory side through public pressure?
Alex: Yeah, a bit of both. So, the first lawsuit that we challenged challenging that call records program resulted in a Second Circuit ruling holding that the program was illegal, that it violated the statute that the government claimed authorized it, and three weeks later, I think that was on May 7th of 2015, the Second Circuit issued that decision. June 1st or 2nd, Congress passes the USA Freedom Act, which was the first real reform of NSA surveillance authority since 1978, which is when the main statutes authorizing NSA surveillance were passed, and the combination – it was a bit of a one-two punch.
The court said it was illegal and Congress reacted by ending collection under that illegal authority and under several other legal authorities that were susceptible to the same interpretation, and that was very pleasing to see. One thing that was a bit disappointing is that the public appetite for reform kind of ran out with that program, and I mention Section 702, and Section 702 was a program that we continue to challenge in court and there are actually a handful of lawsuits challenging it, but the courts have yet to rule in a comprehensive way on the lawfulness of the surveillance that we’re challenging there, and the standing fight still goes on there because we don’t have quite the same disclosure that we had with respect to the call records program.
Nico: Yeah, well, I asked you all of this to kind of preface a larger conversation I want to have with you about the intersection between free speech and the right to privacy, and you wrote this very interesting paper called Why Rely on the Fourth Amendment to do the Work of the First Amendment, in which you essentially argue that there is a speech implication in a lot of the privacy debates that we have and the privacy concerns that we have, and I think it’s encapsulated best by these two sentences that you have in your piece in which you draw parallels between what we do in our private and public lives and what’s called the observer affect in physics.
Unobserved, a citizen’s thought, like particles in physics, follow their own path, but the more closely watched we become, the more it is possible that our paths are determined by the very act of observation. So, the idea being that we act differently when people observe us.
Nico: And so, you argue earlier in the piece that if we want to engage in descent, that often that begins in private before it manifests itself in public, and to be observed in private would deter our paths that would otherwise perhaps manifest themselves in public, but the problem is that a lot of these debates about privacy happens in the Fourth Amendment context –
Alex: That’s right –
Nico: – where that right’s commonly understood, and for a number of reasons, the rights aren’t as well protected in the Fourth Amendment context. They get a lower level of scrutiny and they just protect a narrower category of citizen activity or expression, right?
Alex: Yeah, that’s exactly right.
Nico: So, what got you first thinking about this? Was there a particular case because it’s not an argument that’s often made –
Alex: Yeah –
Nico: – in even First Amendment or free speech circles, but it’s one that anyone who’s read George Orwell’s Nineteen Eighty-Four and seen how – what was his name, Winston Smith –
Alex: Yeah –
Nico: – changes his activity and what he says based on the observation from Big Brother. Now maybe that’s fiction, of course, but I think it rings true. Any of us who were children and acted differently when our parents were watching us as opposed to when our parents weren’t watching us, can have sympathy to the argument that you’re making here.
Alex: Yeah, I mean, it starts with a very common sense observation that is certainly not mine. Like you said, we act differently when we’re watched. People close the curtain when they are at home in their living room. They close the bathroom door before they use the bathroom. They use passwords for their email accounts and their phones, and it’s all for the very obvious reason that we change our conduct when we’re being watched. The reason why I wrote this piece is that I became frustrated with the way that people understood the privacy debate. One thing that you often heard in the wake of the Snowden disclosures was that if you have nothing to hide, you have nothing to fear.
Alex: And I find that argument unpersuasive for a lot of reasons, but one of the most significant reason for me personally that I find it unpersuasive is that it discounts the broader importance of privacy. Privacy is a precondition of a lot of speech, it’s a precondition of descent, it’s a precondition of intellectual autonomy. You need to have a space where you can experiment with ideas, and I remember in college – it may be very different today for kids the way they document their lives on social media, and I wonder what my experience would be like in college today, but I remember clearly having what I thought of as kind of closed spaces where I could, with friends, debate what today I think of as some of the most controversial questions.
But I could debate them freely because I knew that those conversations weren’t going to come back to bite me. That nobody was going to take them out of context, nobody was going to misunderstand what I meant or what they meant, and we could discuss openly and freely in this unobserved college dorm room with maybe a few beers on the side, and that was critical in my own intellectual development, and I suspect it’s critical in the intellection development of a lot of people. Just the ability to talk unobserved, and that, to me, is what was missing from the privacy debate post-Snowden was a real recognition that what was at stake was not just the privacy of American citizens or people more broadly and not just the privacy of those who claim they had nothing to hide, but it was the sanctity of our intellectual environment itself, our ability to be free in coming up with our thoughts and sharing them with others, and eventually, if necessary, fermenting descent.
Nico: Yeah. Well, I think skeptics of your argument might argue, well, yeah, you’re free to express whatever you want, but you’re not immune from the consequences of that.
Alex: Yeah, that’s right –
Nico: It’s not truly private because you’re actually sharing it, for example in your study group, with your study partners and it speaks to kind of the third party doctrine which we can get into.
Nico: The government holds essentially that if you share information with anyone, then it’s no longer private, and John Milton, actually you quote him in your piece, you say John Milton described the prior restraint of publication as the abortion of one’s intellectual offspring. The interesting thing about that quote is that while he didn’t like prior restraints, he thought the government could do anything that it wanted after it was published, so you can say whatever you want, you know, let’s not abort your intellectual offspring, but in Areopagitica he says –
Alex: Judge it for what it is.
Nico: Judge it for what it is and he didn’t mind the censorship or punishment after the publication. Now, it’s not an argument I’m sympathetic to, but it’s an argument that’s made and that the courts have sort of bought into, correct?
Alex: Well, they have in part, but I want to be careful too about my own argument. I’m not arguing that because we need space to express dissent and develop dissenting views, that everything that follows from the expression on those views or the dissent we hope to provoke is protected. It may or may not be depending on the circumstances –
Nico: Yeah, of course –
Alex: – and obviously the norms on free speech and protection at the time that Milton was opposing the licensing scheme that –
Nico: In Britain
Alex: In Britain, very different than they are today.
Nico: Yeah, of course.
Alex: And for obvious reasons, but I think the basic point is the same is that you need that initial private space to develop the views and if the government can influence that area, if they can prevent you from birthing the idea, if they can prevent you even from conceiving of the idea so as to birth it, then it will have undermined the whole premise of representative democracy, the idea that the people are the source of the power. If the people are the source of the power, then the people need to be sovereign of their minds, and overreaching surveillance inserts government into people’s lives in a way that historically wasn’t possible, and that I think undermines that important separation between the sovereignty we all have of our thoughts and government power.
Nico: Yeah, and the Supreme Court sort of understood this. You speak to the seminal NAACP v Alabama case in which the State of Alabama tried to gain access to the NAACP’s donor rolls presumably to try and out them, and the Supreme Court said, you can’t do that because it’s a violation of privacy, but also free speech, right?
Alex: It was a First Amendment case ultimately.
Alex: And the Supreme Court held that the chilling effect of requiring the NAACP to disclose what in essence was its membership would be obvious, especially given the context of the time. The Alabama Attorney General was nominally going after the NAACP for violating, I think it was local rules on taxation. I forget the exact context, but it was pretty clear what was going on. They were targeting –
Nico: They had an ulterior motive.
Alex: Yeah, they were trying to suppress dissent, they were trying to suppress the NAACP’s efforts to advocate for racial equality and racial justice, and the court rightly recognized that that’s a First Amendment problem, that this surveillance tool, this subpoena for records, although you might think of it first and foremost as a privacy question, is also a free speech one and analyze it that way, and the problem is that since that string of cases from the civil rights era, courts have shied away from analyzing surveillance or lawfulness of surveillance in free speech terms. They’ve mostly analyzed those questions in privacy terms.
Nico: There have been some cases that have parallels to that NAACP v Alabama case. In particular I’m recalling one and I’m not too familiar with the facts, but out in California where the State of California is trying to subpoena 501(c)(4) groups, I think some of them are so-called dark money groups, to try and get their donor rolls for what they argue as one purpose, but the defendants – actually the plaintiffs argue as another purpose. Not too familiar with the case and I don’t know how it ultimately turned out, but it seems like for some that’s still an open question and that sort of thing is still –
Alex: Yeah, you still see –
Nico: – in the campaign finance space you see it a little bit.
Alex: That’s right, you still see kind of visages of that line of cases in today’s decision making. Courts still will scrutinize these narrow sorts of demands for identifying information. Basically demands that would unmask anonymous donors or speakers or members. They still analyze those in free speech terms, but they haven’t extended that logic to other surveillance tools. So, NSA surveillance, for example, we’ve argued in court should be thought of as a First Amendment problem and not just a Fourth Amendment one, but the response of courts has generally been if the surveillance meets the demands of the Fourth Amendment, if it satisfies the warrant and probable cause requirement or maybe if it satisfies the exceptions to those requirements, then that’s enough for First Amendment purposes too, and that’s what the piece mainly objects to is the conflation of these two – what I think of as related, but independent rights.
Nico: Yeah, you have this line or these two sentences in your piece in which you say that Fourth Amendment doctrine tends to focus narrowly on individual harms whereas First Amendment doctrine accounts for collective or societal ones. The Supreme Court has said many times that Fourth Amendment rights are personal rights, which like some other constitutional rights may not be vicariously asserted. So, you can’t make the chilling effect argument in the Fourth Amendment context that really is the argument you need to make if you’re concerned about the chilling effect of broad surveillance, right?
Alex: That’s right, and you also can’t make what is the equivalent of listeners’ rights claim in the Fourth Amendment context, so one important recognition of First Amendment context is if you’re a willing listener and you think that there are speakers out there who are being chilled from speaking with you or talking publicly, you can bring a claim on their behalf as a willing listener, and that’s an important protection against the kind of obvious dilemma that chilled speakers are in. If they’re legitimately chilled, you can’t really expect them to file suit, otherwise you’d be very suspicious of –
Nico: Douglass made this moral argument too in his 1960 essay, A Plea for Free Speech in Boston, in which he said free speech is one side of a two sided coin essentially.
Alex: That’s right.
Nico: That there’s the right of the speaker to speak and then the right of the listener to listen. You can think of it in the context of books too. I mean, for example book burning is an affront to the author of that book, but also an affront to the person who would want to read that book and to gather the information from it and any authoritarian government sort of understands that intuitively.
Alex: That’s right, and the Fourth Amendment historically though hasn’t recognized that there are two sides to the coin of the right being protected, and the result is that the government can distort discourse through its conduct that impacts privacy even though if you were to apply First Amendment standards to that same conduct, courts would, I think, more fully appreciate the consequences of allowing the government to engage in whatever the challenged conduct is.
Nico: Yeah, so there was a case, what was it, two terms ago, the Carpenter case?
Alex: That’s right.
Nico: And how has that changed the calculation here?
Alex: Well, so it’s interesting. One thing I noted in the paper, I argue that there’s a –
Nico: This is pre-Carpenter?
Alex: It’s pre-Carpenter, yeah. Carpenter was being briefed at the time that I wrote this paper, so I discuss Carpenter and I pointed to it, but I pointed to it in the context of highlighting the fact that there’s a mismatch between the Fourth Amendment protections and the First Amendment protections. The Fourth Amendment is often held not to apply to a particular form of government surveillance for one reason or another, and one reason is that you’ve disclosed the information you argue as private to a third party, and the courts often hold that if you disclose the information to a third party, you can no longer expect privacy and this is a third party doctrine, but the same is not true on the First Amendment side.
The fact that information you’ve disclosed to somebody else may reduce your expectation of privacy in it, doesn’t necessarily reduce the First Amendment consequences of allowing the government to monitor that communication. In fact, I pointed to this as a mismatch between the First Amendment and the Fourth Amendment and a reason to be skeptical of the claim that some courts make that surveillance that satisfies the Fourth Amendment also satisfies the First. Since then, Carpenter’s come out and it has essentially begun the rethinking of the third party doctrine. It held that the government needed to get a warrant before it acquired seven days or more of somebody’s cellphone location information.
A historic ruling, you know, an important ruling that will change privacy law, I think, for decades to come, and it, I think, reduces the mismatch a little bit between the First Amendment and the Fourth Amendment, but it doesn’t go nearly far enough to address what I think of as still – they’re just distinct amendments. They cover different things.
Nico: But as I was saying at the beginning, the standards applied to them are different. For example, and you point out in the piece, under the First Amendment the government must use the least intrusive means possible in pursuing its interest. In the Fourth Amendment case, that’s not the case –
Alex: Right, they just have to act reasonably.
Alex: Yeah, and there’s a lot of differences between the First and Fourth, so I point to the fact that in the Fourth Amendment context there’s often this divide and conquer approach that courts take. So, courts have held it is not a violation of the Fourth Amendment for the government to acquire the web address of one website that you visited, and because it’s not a violation for them to acquire one address you visited, it’s not a violation for them to acquire the sum total of every website you’ve ever visited, and the First Amendment, the courts analyzing that kind of surveillance on the First Amendment would say that’s nonsense, of course there’s a qualitative difference between the government knowing whether you read this one article on the New York Times’ site and knowing your entire reading history.
There’s a difference between the two and people would be more likely to be chilled from reading what they want to read on line if they knew that the government could acquire, without any process whatsoever, a list of everything you’ve read.
Nico: Yeah, and it wasn’t forced to justify its actions in the same way you are in the First Amendment context.
Alex: Right, right.
Nico: So, you’re at the Knight First Amendment Institute and have you been there since its founding?
Alex: Basically yeah. I started in January 2017 right about when it started.
Nico: Yeah, and if I’m recalling correctly, your purpose is to defend First Amendment freedoms in the digital age.
Alex: That’s right.
Nico: And is your focus on impact litigation or are you looking for discreet cases to enforce the law as it currently stands?
Alex: Mostly. So, yeah, we have a litigation program and a research program, and on the litigation side, the focus is on impact litigation. We want to identify areas where it’s time for courts to either apply old principals to new technologies or to think about old principals differently in light of new technologies. That’s an important reason that the institute was founded. On the research side, the work is very different. We’re not necessarily advocates on the research side. We are sponsors of research and public thinking that we think would advance public understanding of the issues that we care about.
And so we’ll sponsor research that we might end up disagreeing with eventually once we’ve had a chance to think about it ourselves, but that we think is important to help both the staff of the institute and others kind of sort their way through some of these hard challenges. Just to give one example, we have this symposium coming up in November on the technology companies’ monopoly power in public discourse, and we’re intrigued by some of the recent suggestions that we ought to think about the influence that Facebook and others have on public discourse as really a problem with competition policy, with anti-trust policy or monopoly policy, and not so much a problem of content regulation which is how some people want to think about it.
And we’re intrigued by that. We don’t know what the answer is, but it seems like an important conversation and one that we are positioned to contribute to and so we’re hosting a symposium on that question.
Nico: As far as impact litigation goes, are you – you look through the staff and a lot of you have privacy experience.
Nico: A lot of you have come from – like Jameel, I believe – Jameel Jaffer, who’s the executive director.
Alex: That’s right.
Nico: Comes from a background where he litigated a lot of privacy cases also at the ACLU so are you looking for impact litigation that tries to bridge this gap that exists between the Fourth and the First Amendment and how the two amendments are applied and viewed more or less?
Alex: We are absolutely. We have a number of priorities and one of them is convincing courts to rethink of surveillance disputes as First Amendment disputes too, and that’s a long form task, and –
Nico: But you might have five votes on this court, right, because Gorsuch is pretty sympathetic to some of these privacy arguments.
Alex: I think that he is. Whether he’s sympathetic to them when framed as First Amendment questions I think remains to be seen.
Alex: It may be that Roberts too. He’s described himself as one of the most ardent First Amendment supporters on the court, and I think the reality is that there are a variety of ways to be a First Amendment supporter and it also depends on what your vision is of the First Amendment.
Nico: Yeah, if your vision of the First Amendment does not encompass what you and I might view as First Amendment concerns, then it’s a narrow view of the First Amendment.
Alex: But you’re right generally I think that the First Amendment tends to be less partisan and it’s hard to predict someone’s outcome in a First Amendment case based on their nomination, you know, the nominating party.
Alex: And so we’re hopeful that courts will recognize this relationship between free speech and privacy in a doctrinal way, and there’s reason to think that they will, which is that the kind of surveillance that the government can engage in today is dramatically different than the sort of surveillance courts have considered historically, and the free speech implications of that surveillance are so much more salient to how people react to the surveillance than in the past, that I think courts will be persuaded, and I think, in fact, the Carpenter decision itself is a reflection of that fact. I think the court reached to broaden what some had historically thought of as the Fourth Amendment’s reach in part to accommodate free speech concerns.
Now, I think there are costs to protecting the First Amendment through the Fourth Amendment even if the coverage is the same, namely what you were pointing to earlier. The standards are different and the way that courts think about the harms are different, and so I think there’s independent value in making sure that analysis takes place on the First Amendment side of the ledger, but the court’s decision – the Fourth Amendment decision in Carpenter I think is a reflection of the fact that there are real concerns with overreaching surveillance for free speech that we need to be considering.
Nico: Well, since you all do research, you might already be considering this.
Nico: Consider doing real studies on the effects that surveillance has on the activities of individuals. If you’re studying humans and how they interact with, for example, eyeball on the wall and an eyeball not on the wall, you would need to put it through an institutional review board, but it’s these sorts of studies often that are cited in Supreme Court cases.
Alex: That’s right, yeah
Nico: That can move the needle in the direction – in this case, in the direction of greater First Amendment protections for surveillance.
Alex: Yeah – yes, and we have. So far we’ve hosted two public events relating to free speech and surveillance, the first of which we tried to ask the question: What is it that’s holding courts back from recognizing that surveillance is a First Amendment question, and we had scholars who focused on that question – Fourth and First Amendment scholars on a panel moderated by Jack Balkin at Yale, asking this question: What’s holding courts back? And then the second panel was meant to build on that because the conclusion of that was maybe unsurprisingly more or less what you just said, which is courts want to see better evidence that surveillance is having the affect that seems intuitive that people are changing their behavior.
They want to see the empirical foundation for the chilling effect, and so the second panel we hosted was with more social scientists and it was called, Measuring the Chilling Affect, and it was meant to serve the current state of social science’s understanding of the chilling effect to identify gaps for future research, and now we’re looking into partnering with the folks who do this sort of research in doing some more, but this is a significant undertaking and it’s something that we’re very motivated to do, but…
Nico: You need someone who knows how to do the methodology.
Alex: That’s right.
Nico: There’d be human subjects, you’d need to put it through an institutional review board, but isn’t this how Holmes made his name with the –
Nico: Yeah, Holmes made his name with the Holmes Brief, bringing social science research to bear on these questions.
Alex: That’s right, and you’d also look for natural experiments which some have done. One of the most sophisticated studies that has been done was by a researcher named John Penney who is on our second panel, and he looked at the impact of the Snowden disclosures on readership of certain Wikipedia sites, and he studied the readership of particular sites that you might associate with the US government’s surveillance interests, so sites relating to terrorism or to particular kind of foreign policies, subjects that you might think the NSA would be interested in, and his research showed that there was statistically significant and long-lasting decline in readership of those that turn all on the Snowden disclosures or on June 5th, 2015, the day of the disclosures.
So, there are natural experiments that you can kind of run as well, and there may be more of those over time as more and more data is collected about these things.
Nico: Well, I’ve experienced that too because – when was it? Back in like 2015, 2016, when Isis was a big topic of conversation, ’14 and ’15 more or less, they were taking over large swaths of Iraq and Syria. There was a lot of discussion in the news about their magazine, and I forget – Inspirer or something.
Alex: Yeah, Inspire.
Nico: And they were saying about how it’s produced by people in the west and it was very glitzy and well-made and this is what was drawing people into their caliphate, and I was just curious as to what it looked like, what is this thing, what was the persuasive power that it had, and I would be remiss or I would be lying if I said I didn’t think twice before trying to google it because presumably that’s something the NSA is watching, for people googling for Inspire, but I just wanted to get that information for educational purposes.
Nico: To hear what all the hullabaloo was about.
Alex: And then if you’re a privacy nut like me, before googling it, you’ll actually open up a tour browser to use an anonymizing network to view it, and then you’ll worry that your internet behavior will actually start to look like the internet behavior of people the NSA really cares about.
Alex: Trying to mask your IP addresses. Yeah, it’s a very common sense – it shouldn’t surprise anyone that that’s a human impulse. It just hasn’t yet convinced courts to think of it that way.
Nico: Speaking of courts, this is the last think I wanted to talk with you about before I let you go here, the Trump Twitter case.
Nico: It’s Knight Institute v Trump, and you have standing to sue on. Did someone in your organization get blocked or –
Alex: No, the suit is on behalf of seven individuals who were blocked by Trump, none of whom work at the institute, and it –
Nico: Blocked by Trump on Twitter.
Alex: On Twitter and it’s also on behalf of the Knight First Amendment Institute as someone who follows Trump. The organization follows Trump and wanted to have access to an undistorted public forum surrounding his tweets, one not distorted by the blocking of critics, and so the court held that – on standing it held that the seven individual plaintiffs obviously had standing because they were blocked and that the Knight Institute had standing as a willing listener, and on the merits it held that President Trump’s blocking of his critics on Twitter violated their First Amendment.
Nico: And this was reaffirmed when it was appealed to the Second Circuit, correct?
Alex: That’s right, that’s right.
Nico: So, this is a big case.
Nico: This sort of thing hasn’t happened before. My first question: When you filed it – my first instinct when you filed it was some skepticism because I had asked actually Eugene Volakh over at UCLA about this question in the context of virtual reality. Eugene is a very forward thinker, he’s looking at First Amendment questions in the context of virtual reality where he thinks many of us will live in the decades to come, and we talked about the consequences of blocking people within your virtual reality, and I asked him if there is a First Amendment concern there, and he said no.
And then I said, well, what if a politician, for example, is holding their town hall in their virtual reality and they block you from participating in that, and he was skeptical of the First Amendment claim that would be made there, but then once you filed your suit and I think he thought about it more and the consequences more, he came around to it, but I was skeptical too because I was thinking, well, there are certain fora that politicians create which are limited in a certain sense. The press briefing for example, and I imagine that’s an argument the other side has made as well and what’s your response to that? I mean, is it that you can only fit so many people in a room in a press briefing.
Alex: Well, interestingly there’s actually good case law on press briefings.
Alex: The DC Circuit has held that if people are excluded from a press briefing on the basis of their views, if they’re actively kicked out for viewpoint discriminatory reasons that can violate the First Amendment.
Nico: Acosta was about to file a lawsuit or something.
Alex: And I think he got his credentials restored, but the judge in that case expressed real skepticism of the government’s argument, but I think in part based on this DC Circuit precedent. I forget the name of it, but in the Trump case we thought it was a lot easier than those cases because the president made a concerted decision to use, as a way of communicating with constituents in the country as a whole, a forum that has as its defining characteristic the fact that it’s interactive. If he wanted a one way communication tool for talking to the nation without hosting interactive feedback from listeners, it’d be very easy. I mean, he has the White House website, he has press briefings he can give where he’s talking to a camera and nobody can ask him questions at that time.
Alex: He has any number of tools he can use to talk to the country without having that sort of feedback, but he chose Twitter, and I think he chose Twitter for a reason, which is that feedback in some ways amplifies his message.
Alex: I think he delights in the retweets and the mentions and there’s a responsibility, though, that comes with availing yourself of that interactive form which was that so long as it stayed action and so long as you’re opening it up to the public at large, you’ve created a public forum.
Nico: So, the state action here is that he makes policy pronouncements in Twitter.
Alex: Well, it’s a little more complicated than that. So, the question is: When does a state actor – when are they acting in an official capacity and when are they acting in a private capacity, and courts have always analyzed that question in a functional way. It’s never been a formalistic assessment of whether the government owns the thing that you’re using or whether you own it or anything like that. It’s always been a functional inquiry. Is what you’re doing something that people would understand to be the state doing it or you doing it in your private capacity, and we thought the answer to that question with respect to Trump’s Twitter account was very obvious.
He had White House aides helping him run the accounts, so Dan Scavino, the social media director getting paid by the government on the government’s time to help run the account. He announces policy decisions on the account for their first time. He announces the firing and hiring of his staff for the first time in account.
Nico: His threats against North Korea.
Alex: Yeah, he actually engages in foreign diplomacy on the account. He refers to the statements as official statements of the White House. He actually responded to a request from Congress for an answer to some series of questions by saying that he had answered them already on his Twitter thread and provided those to Congress. So, that question to me was always easy with respect to President Trump’s Twitter account. I think it’ll likely be harder in the context of other officials who aren’t using it in so clearly an official way, and the courts will have to grapple with that in other contexts.
Nico: There was just a lawsuit filed against Alexandria Ocasio-Cortez, for example –
Alex: That’s right.
Nico: She has a practice of violating – not violating, of blocking –
Alex: Of blocking, yeah –
Nico: – Twitter followers and I mean, you’d probably have to look at all the facts there, but I’m assuming a public official who does engage on Twitter and engages a lot of political discussion. I don’t follow, I’m not on Twitter very often, so I don’t know how much on there is policy or how much of the Twitter account is managed by her staff, but…
Alex: Yeah, so I’ve looked at it only briefly, I haven’t done a close look like the way I’ve done with President Trump’s account. My sense from my quick look is that it looks pretty official, and if that’s right, then she shouldn’t be blocking people on the basis of viewpoint. That then raises, I think, the question that will be the focus of the next wave of litigation about social media blocking by public officials, which is okay, these are public forums, but the courts have held that we can keep people out of public forums, we can moderate public forums so long as we adopt viewpoint neutral rules that are focused on the time and place and manner of –
Nico: So, if Trump’s not just blocking his critics, but he’s blocking other people as well, I mean, that would be the viewpoint neutral –
Alex: Yeah, they need to be viewpoint neutral, time, place and manner restrictions, or he could adopt subject matter limitations, so courts have recognized that one type of public forum is a limited one in which the government sets the topic of conversation, and so you can think of the quintessential town hall and the subject for the day is healthcare in City X. We’re not here to talk about the schools. If you want to talk about the schools, we’re gonna turn off the microphone, and the courts have held that’s fine. If you set the terms of the topic of discussion, the government can limit it to that, and so you could imagine politicians saying, no off topic comments.
Nico: Yeah, that’s content neutrality.
Alex: That’s content neutral, but they’d have to apply it in a viewpoint neutral way.
Nico: Yeah, which is a trick.
Alex: Which is a trick because the reason that politicians seem to block people is not because they’re looking at all the tweets on their timeline and saying, this violates the policy and this doesn’t. Usually, what happens is they say, that tweet annoys me, do I have a basis for blocking it, and that’s classic viewpoint discrimination, they can’t do that, but I think that’s what the next wave of litigation will be about. Assuming the Supreme Court accepts the rulings that have now come out of the Second and the Fourth Circuits, then I think the next wave will be about, well, what are reasonable time, place, and manner restrictions on a forum like Twitter or Facebook.
Nico: I’m very curious, as far as discovery in this case went. Were you able to see just how much his communications’ team dictates what he does on Twitter because that’s a question that a lot of us have. Is this just him firing off Tweets or is there some sort of strategy behind this, and I imagine in discovery if the argument is that this is an arm of the government and the government is helping him with this account, then something –
Alex: I hate to disappoint. We did not go through discovery in the case. We were contemplating discovery and before we had an opportunity to brief the first motion that we wanted to file, the court held a status conference and the judge, Naomi Buchwald, suggested to the parties that we look for a way of coming up with a stipulated set of facts to avoid –
Nico: Discovery –
Alex: – the complications of discovery because we would be taking discovery ultimately of the president and we’d have to deal with a whole slew of arguments the government would raise about whether the president can even be deposed or subject to discovery in a civil suit while he’s still president.
Alex: And while the prospect of taking discovery against the President was an attractive one, it would have been a distraction from what –
Nico: Just for historian sake.
Alex: Yeah, it would have been – yeah, that’s right, but we decided that it would have been a distraction from what the real principal at stake was.
Nico: And probably an uphill battle.
Alex: It would have been an uphill battle, a long one, and one that would have distracted from what we thought was a clean message of the case, and the clean message of the case was: When politicians go on line, the First Amendment follows, and that’s what we wanted the case to focus on, and we didn’t want to get sidetracked by a month’s long process of deciding whether we could take discovery against the president, and to our surprise, the government was willing to stipulate to all the facts that we thought were essential –
Nico: Necessary –
Alex: – to our claim, and the key one, the key facts that they stipulated to were that he blocked all these individuals shortly after they criticized him and he didn’t contest that he blocked them on the basis of their viewpoint, and that’s the kind of core claim at the heart of the case.
Nico: Yeah, so he had this Twitter account before he became president.
Alex: That’s right.
Nico: And I hate to make you opine on hypotheticals, but let’s say, for example, that he is operating the Twitter account using the Twitter account, but all he’s posting is pictures of Melania and his kids and that he’s not even actually following anyone, he’s using it as a one-way street of communication. He’s following zero people, but he’s followed by 63 million.
Nico: Presumably in that case it wouldn’t satisfy two of the facts that are essential for the First Amendment claim to be valid, which is that it’s a state account and he’s not operating it – his staff isn’t operating it, he’s not making policy pronouncements and also he’s not following anyone, so it’s not interactive.
Alex: My instinct is that the following is less relevant than the other two, and I think the other two would be dispositive. If he didn’t use it in a way that reflected – that suggested he thought of it as a tool of governance essentially, then it wouldn’t be state action, but I’m less sure about the following because Twitter allows all that interaction whether or not you’re following people and each of his tweets gets 10,000 or more comments. I mean, they generate these enormous volumes of communications and maybe many of those people are following the president, but he’s certainly not following all those people. He follows a relatively small number of people compared to –
Nico: Well, he doesn’t and as far as facts in the case go, he does respond to people periodically.
Alex: He does, yeah, he retweets people, he responds, yeah.
Nico: I don’t know how you sort through your responses and find that one person that you want to respond to, but –
Alex: I think –
Nico: – that’s why he has a staff.
Alex: Yeah, he has a staff, and I think the reality is that he does what most people do who have Twitter feeds. They look at the top of their comments and they see what the most popular ones are and those are the people he blocked. When he had critics who were at the very top, he blocked them, and the seven plaintiffs who we represent were all people who – they tended to have verified accounts and were very popular on Twitter, and so when they tweeted something critical of the president, it jumped to the top of his comment thread.
Alex: Now here’s the other interesting fact that we got through the stipulation: The president stipulated that it was the president himself doing the blocking, which is just a surprising fact for history.
Nico: Yeah. So, to close out here, what’s the next step? Do we know if the government is going to appeal this to the Supreme Court?
Alex: We don’t know yet. They have 45 days from the Second Circuit’s ruling to decide whether –
Nico: On July 9th or so?
Alex: That’s right, to decide whether to petition for rehearing in the Second Circuit and 90 days for the Supreme Court review, so we still have another two months before we really know what’s going to happen next.
Nico: Yeah, so we’ll stay tuned. Alex, thanks so much for coming on the show. We’ve been at it for about 45 minutes now, and I think I should let you go. Hope to have you on soon.
Alex: Thanks for having me.