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1:01

Are fanatics. Welcome

1:15

to a special expedited episode. Of

1:17

strict scrutiny Your podcast about the supreme. Court

1:20

an illegal culture that surrounds it.

1:22

And by expedited episode, we mean

1:24

it is not really so expedited

1:26

at all. Just a normal episode.

1:28

We are hosts. For today, I'm teacher

1:30

and I mean Lipman. Melissa isn't fortunately out

1:32

trying to locate Kate Middleton. Ah, that's a

1:34

joke. Melissa is traveling and the fact that

1:36

she's not here Me and she can't stop

1:39

us from putting in extra invited plead to

1:41

get her book, the Trump indictments, the historic

1:43

charging documents with commentary so you can read

1:45

all about the charges and indictments that the

1:47

Supreme Court will not let go to trial

1:50

right? Go see what it is they're trying

1:52

to prevent the American example I remember hearing

1:54

to prevent a jury from ever. Deciding.

1:56

On, but we're getting ahead of ourselves. go by most

1:58

as buck in the mean. I'm okay to

2:01

Here is a road map for the episode as

2:03

is probably clear. We're going to first talk about

2:05

how the Supreme court decided to get involved in

2:07

the Federal Election Interference case arising out of January

2:09

Sixth. We will. Then. Moved to read helps of

2:11

cases the court heard last week including a

2:14

couple of really important social media cases. Cases

2:16

about. Whether government can ban platform

2:18

from engaging and clinton moderation. And

2:20

for that conversation we will be joined by the great

2:22

evelyn to act of. We will also recap a case

2:24

about whether the Federal government. Can lawfully restrict bump

2:27

Stocks that is devices that converts semiautomatic

2:29

rifles into essentially machine guns which can

2:31

fire hundreds of bullets for the single

2:33

motion and we will then have a

2:35

cork hotter segment and which will talk

2:37

about the latest insanity but also surprisingly

2:39

some sanity out of this or courts

2:41

in Texas so there's a lot to

2:43

cover it. Let's get right to us

2:46

and first. Set his presidential immunity is.

2:48

the Supreme court acted on Trump's immunity

2:50

claim and did democracy kind of dirty

2:52

sell? It's only March, although technically the

2:54

relevant order came in February, but it

2:57

is already time for some bad decisions.

2:59

Santa Lido and the Supreme Court are

3:01

in their dangerous When era and democracy.

3:03

You and everyone else are in danger

3:05

girl. Yep! Soaps Listeners will

3:08

recall that the Dc Circuit rejected Trump's

3:10

outlandish immunity claims last month in a

3:12

federal case arising out of the events

3:14

of January Sixth. So after losing big

3:17

unanimously before the Dc Circuit trump winter

3:19

supreme court asking for a stay of

3:21

the Dc Circuit ruling in order to

3:23

allow him to seek both supreme court

3:25

review and on bank review in the

3:28

Dc circuit which would have resulted in

3:30

considerable delays in the proceedings of the

3:32

Special Counsel, by contrast, urged the courts

3:34

first and primarily. To deny Trump's say

3:36

applications but if that wasn't I have

3:38

and the Special Counsel. Ask the court to

3:41

treat Trump filing as request for social are

3:43

A and to grant review and set the

3:45

case for argument in March. So that is

3:47

how could still happen before the election. And

3:50

after pretty inexcusably and I view sitting

3:52

on the keepers for almost two weeks

3:54

the supreme court granted Sir Henri and

3:56

noted that it quote expedite at the

3:58

case for scheduling or. argument almost

4:01

two months later at the end of April. So this next

4:03

part is potentially important. The court also directed

4:05

the court of appeals to withhold the court

4:08

of appeals mandate until a Supreme Court ruling

4:10

and quote, sending down of judgment, end quote,

4:12

withholding the court of appeals mandate means the

4:14

trial court doesn't get the case back, meaning

4:17

trial proceedings cannot resume until there's a Supreme

4:19

Court decision and possibly until the Supreme Court

4:21

sends a physical copy of that decision to

4:23

the lower courts, which the Supreme Court's rules

4:26

say what happened within 30 days

4:28

after a decision in the case. Now

4:31

as to that last piece, the sending down of the order,

4:33

I think the court can send that order down faster if

4:35

it wants to. It has done so in the past, but

4:37

I think the larger point, which is of course correct, is

4:40

that the decision to set the case for

4:42

argument seven weeks from now definitely

4:45

means significant additional delay, which is

4:47

an enormous victory for Trump. Right.

4:50

And one of the things that is the most

4:52

baffling here is that it took weeks to issue

4:54

this order. And I think no

4:56

one was shocked at the bottom line decision

4:58

by the court that they did want to

5:00

have the last word on this presidential immunity

5:03

question rather than just let the DC circuits

5:05

opinion stand. But I

5:08

think with the passage of time, a lot of people

5:10

came to believe maybe they actually were just going to

5:12

let the DC circuit opinion stand because if they

5:14

were planning to hear the case, why not

5:16

move immediately to do that? And

5:18

why not move immediately to do that in light of

5:20

some of their much more expeditious treatment

5:22

of similar in many ways,

5:24

asks of the court. So compare this

5:27

two week delay and then seven weeks to

5:29

oral arguments with what the court did in

5:31

the Colorado case about disqualification. So there the

5:33

cert petition was filed on January 3rd. The

5:36

Supreme Court granted the case on January 5th. The

5:38

case was scheduled for argument one month later, dial

5:41

the clock back a little further and you have

5:43

even more striking examples. Bush versus Gore took them

5:46

days to grant, right? The Florida Supreme Court decision

5:48

was December 8th. This is back in 2000. They

5:51

granted on the ninth arguments on the 11th that

5:53

opinion on the 12th, right? It's not

5:55

a recipe necessarily for the most enduring

5:57

judicial craftsmanship, but it's possible for them

5:59

to. move expeditiously when they think

6:02

the national condition requires it. And

6:04

it is very clear that they have decided that's

6:07

not the case here, right? They said the argument won't

6:09

happen until the week of April 22, which

6:11

means there won't be a decision until early

6:13

May at the very earliest. And

6:15

to game this out in terms of what it means

6:18

for a trial, the bottom line is

6:20

that this decision to wait for

6:22

two weeks and then schedule arguments seven weeks

6:24

from now makes it pretty unlikely that there

6:26

will be a trial before voting in the

6:28

election starts and may mean

6:31

that there is no trial before the end of the

6:33

summer and potentially no trial at all before the election.

6:36

And again, just to explain the details, you

6:38

know, after the argument, the court will have

6:40

to issue a decision, right? That's going to

6:42

take at least a week. Then they have

6:44

to actually physically deliver a copy of their

6:46

opinion to send the judgment down. The ordinary

6:49

rules say that's going to happen within 32

6:51

days could happen more quickly. I don't know.

6:53

Judge Chutkin said 80 some days

6:55

will be required for trial preparation. It's possible she

6:57

would shorten this as well, but that's also unclear.

6:59

So if you add that up 30 days

7:01

after an opinion plus 80, that's

7:03

already 110 days. So if

7:06

the court releases its opinion at the end of

7:08

June, that means no trial before the beginning of

7:10

November. If it's released end of May, no trial

7:12

before the beginning of October. And then the trial

7:14

will happen. And who knows when there will be

7:16

a verdict because Tom's defense team might call a

7:18

bunch of witnesses and try to drag out proceedings.

7:21

Yeah. So the beginning of the trial obviously doesn't tell

7:23

us when things get to a jury. So

7:25

the clock, the calendar, the math here

7:27

is all really, really hard for the

7:30

prosecution and very advantageous to Donald Trump

7:32

in particular, given his demonstrated willingness to

7:34

delay proceedings. And in some ways, the

7:36

kind of calendar math that Leah just walked through is

7:39

the best case scenario. There

7:41

are worse scenarios that

7:43

involve a decision out of the Supreme Court that

7:45

announced maybe some kind of legal

7:48

standard about presidential immunity that

7:50

isn't categorical, that requires Judge Chutkin

7:52

in the district court to make

7:54

additional determination before proceeding with the

7:56

case. The court's modified question presented

7:58

says they are interested in the

8:01

scope, if any, of immunity arising

8:03

from official acts. The

8:05

order specifically says, and I'll quote, whether

8:07

and if so, to what extent does

8:09

a former president enjoy presidential immunity from

8:11

criminal prosecution for conduct alleged to involve

8:13

official acts during his tenure in office?

8:16

So the DC Circuit had, I think

8:18

the best reading of their opinion assumed

8:21

that Trump's actions were official acts, but

8:24

then it also said it wasn't

8:26

really deciding whether, quote, executive immunity,

8:28

if it applied here, would encompass

8:31

his expansive definition of official acts, end

8:33

quote. So again, it's possible that something

8:35

that the Supreme Court says would require

8:37

additional determination by the trial court about

8:40

whether things fell within the scope of

8:42

official acts or actions as defined by

8:44

the Supreme Court in this opinion. So

8:47

that's a potential source of delay as well.

8:49

Yeah. And then if that's the case with another round

8:51

of briefing and decisions in the lower course, then any

8:53

prospect of a trial before the election is decisively eliminated.

8:56

Okay. So back to the big picture. The

8:58

Supreme Court didn't give Trump everything that he asked

9:01

for. He had asked the court to hold the

9:03

case until next term, but they also didn't do

9:05

what the special counsel asked for by way of

9:07

a briefing schedule if they were going to take

9:09

the case up and the special

9:11

counsel's briefing schedule would have much

9:13

more obviously facilitated a

9:15

possible trial this summer. And

9:17

remember that the court did not take this issue up

9:20

when Jack Smith asked them to before the DC

9:22

circuit had weighed in, even though this very

9:24

term, they put an environmental law case on

9:26

their docket about whether to block a rule

9:28

before the DC circuit has even weighed in

9:30

on whether the rule is lawful. And

9:33

in other previous cases, the court has been all

9:35

too willing to leapfrog courts of appeals

9:37

decisions. And one especially

9:39

egregious example of this is the eviction moratorium

9:41

case where the Supreme Court vacated a

9:43

district court stay of a decision in

9:45

validating the moratorium on evictions while an

9:47

appeal was pending. So they were willing

9:50

to reach down to a district court

9:52

in order to protect landlords, but

9:54

not to protect the possibility of a trial

9:57

about the potential guilt of a presidential

9:59

candidate. for the most grave of political crimes

10:01

of literally trying to steal a presidential election. I

10:04

actually think there are a bunch of

10:06

really egregious examples. And another one that I

10:08

would put on the table is the case

10:11

of Dustin Higgs. So this was one of

10:13

the Capitol cases where the Supreme Court vacated

10:15

a stay of execution to allow the Trump

10:17

administration to execute people who were convicted of

10:20

federal crimes during the waning days of the

10:22

administration. And there are two aspects of this

10:24

case that I think make it especially relevant

10:26

here. One is that the government,

10:28

the Trump administration sought certiorari before judgment, right,

10:31

before a court of appeals had weighed in.

10:33

And the Supreme Court said, yeah, we're willing

10:35

to leapfrog the court of appeals. And

10:37

they did so, right. The only reason, right,

10:39

to hurry up is because of timing, because

10:41

the Trump administration was on the way out.

10:43

So unless they acted quickly, right, the Biden

10:45

administration was going to come in and Joe

10:47

Biden had announced he was not going to

10:49

carry out the federal death penalty. And so,

10:52

again, like they are willing to modify their

10:54

procedures, modify the timing in some cases. And

10:56

they just made the calculus here that it

10:58

wasn't worth it to do so. And instead

11:00

seems to be running out the clock for

11:02

Trump on the election interference case, which is

11:04

a win for him. And I can't

11:07

help that, you know, the week Mitch

11:09

McConnell announces he's resigning from Senate leadership,

11:12

like the analogy to me

11:14

is Mitch McConnell might not be the worst

11:16

in the Republican coalition, but he played the

11:18

biggest role in enabling the worst and facilitating

11:20

the worst. And even though, again, the court

11:23

didn't do the worst thing here, what they

11:25

are doing is enabling someone

11:27

who is a huge threat

11:29

to democracy and making it

11:31

possible for him to gain power, just like Mitch

11:34

McConnell. Yeah, I'm so glad

11:36

you brought that Higgs example. I'd forgotten about

11:38

that. It is like the pressing need for

11:40

speed in the court's mind was was the

11:42

need to let the Trump administration execute this

11:45

person before the change in administration. And here

11:47

the pressing need, even putting aside

11:49

what they think of January 6th and Donald

11:51

Trump, just the pressing need to have a

11:53

trial and let a jury decide so American

11:55

voters, supporters and opponents can know what a

11:57

jury made of these charges before the election.

12:00

It just seems like so obviously

12:02

oppressing national interest and they

12:04

are just proceeding as though, you

12:07

know, they're saying expedited. We're

12:10

calling it expedited. Just so we get at the outset of

12:12

our episode. And that's essentially all

12:14

the urgency they can seem to muster. Or

12:17

wellian, you might even say. The

12:21

court is content moderating Jack Smith's

12:23

prosecution. You also might say. You might

12:26

say that. In

12:28

any event. So it really does look as

12:30

though they're running out the clock for Trump on the election

12:32

interference case. And it's an enormous

12:34

gift to Donald Trump that this

12:36

additional delay has been introduced. And

12:39

it's also hard to square this

12:42

with the course seeming concern about

12:44

consequences in the Colorado case involving

12:46

Trump and his appearance on the Colorado ballot. Right. Again,

12:49

we heard ad nauseam in that argument

12:51

about how if Colorado could disqualify Trump,

12:54

that would have all these negative consequences

12:56

in terms of allowing other states to

12:58

make disqualification decisions and it would destabilize

13:00

our entire election apparatus. And

13:02

you know, if they are intent on owning the consequences

13:05

of their rulings, and I think they need to

13:07

own the consequences and not hear the

13:09

consequences, the delay in a trial and

13:12

the possibility of elimination of a trial before

13:14

the election. And you know, again, I don't want

13:16

to repeat myself, but even though a trial sort

13:19

of feels like an abstraction, we're literally just

13:21

talking about giving a jury and the American

13:23

people the chance to know whether Trump is guilty

13:25

of trying to unlawfully remain in power after losing

13:27

a presidential election, which seems like a relevant

13:29

piece of information as he is seeking to

13:31

again, win a presidential election. And yet

13:33

I'm not sure we're going to ever see a

13:36

verdict in this case. No. And

13:38

to be clear, the Supreme Court is not

13:41

the only one to blame here, right? Like

13:43

the Attorney General, Merrick Garland took years to

13:45

appoint a special counsel, meaning indictments didn't come

13:47

for several years until after January 6th, really

13:50

only when Congress had forced their hand,

13:52

right, with the January 6th hearings. And

13:54

I think honestly, part of where the

13:57

Attorney General, you know, went wrong is

13:59

not recognizing the Supreme Court and maybe

14:01

the courts in general for what they were

14:03

and were likely to do, not anticipating that

14:05

they would, right, if given the opportunity, give

14:08

this delay and create the possibility of

14:10

letting Trump, you know, roll

14:12

out the clock. Yeah. So can I ask before

14:15

we leave this topic, so we've talked about the

14:17

seven weeks until the argument. What about

14:19

the two weeks? Like, do you have theories for what caused

14:21

this delay if they were going to take the case why

14:23

they didn't just take it two days later, like the Colorado

14:25

case? You know, I think there

14:27

are some reasonable explanations and then some more

14:29

concerning ones. And I think the reasonable explanations

14:31

are it's in like somewhat of a complicated

14:33

posture where you have a stay application from

14:36

a party who's not seeking certiorari. And then

14:38

the party responding says treat it as an

14:40

application for certiorari. So there's probably got to

14:42

be some interim discussions among the justices about,

14:44

should we treat this as a stay application

14:46

when the party seeking the stay didn't seek

14:48

cert? And if we are granting certiorari, what

14:51

do we do with the stay application? What

14:53

do we need to do to modify like

14:55

the DC circuits mandate and the briefing schedule?

14:57

So there are some things to sort out.

14:59

I don't think it's two weeks of things

15:01

to sort out. Instead, I think like probably

15:04

what happened is there were fair number of

15:06

justices who wanted to give Trump everything he

15:08

wanted. And that was their initial position. Whereas

15:10

other justices wanted to do something more reasonable.

15:12

And so there was a negotiation

15:15

and what result is a compromise. And

15:17

some people have asked about the logistics

15:19

for how this might have happened. There

15:21

aren't clear rules, but a few parameters

15:24

seem worth reminding listeners. So granting the

15:26

stay that is just like keeping on

15:28

hold, the DC circuits decision indefinitely until

15:30

Trump's up for the review, that would have

15:32

required five votes. Granting cert

15:35

requires four votes, right? So

15:37

it's possible some justices wanted to stay, but

15:39

there weren't five votes and at least four

15:41

granted cert teeing up these discussions about scheduling.

15:43

And there really isn't a specific procedure for

15:45

how to handle that the scheduling the chief

15:47

takes the lead. But what goes on from

15:49

there is just less clear. Yeah. And if

15:51

it's the chief taking a lead and it's face eating

15:53

leopards that he needs to try to corral, maybe it

15:56

just takes two weeks to actually get to democracy eating

15:58

leopards, right? As the case may be. Um,

16:00

yeah, but you know, just worth underscoring

16:02

again, like nobody is coming to

16:04

save us and this democracy and the court has

16:07

made clear it will get in the way and

16:09

that it is a huge problem for democracy. And

16:11

that unfortunately just needs to be baked in to

16:13

people's decisions about what to do in

16:16

the political system right now. Yeah.

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on that positive note, let's turn to the

19:14

cases the Court heard argued last week, which

19:16

are about whether the Court is gonna mess

19:18

up social media, and also whether

19:21

it might intervene to undo one of

19:23

the small pockets of federal gun control

19:25

that still exists. Last

19:27

week, the Court heard arguments in the Net Choice

19:30

cases, that's shorthand for a pair of cases challenging

19:32

a pair of laws, one out

19:34

of Texas, one out of Florida, that

19:36

regulates social media platforms by prohibiting certain

19:38

forms of content moderation. Put

19:41

differently, these laws force social media

19:43

platforms to host speech, even speech

19:45

they find destructive or possibly dangerous.

19:48

Now, as listeners have probably noticed, there has been a

19:50

fire hose of legal news in recent weeks, so we

19:52

actually haven't had a chance to do any kind of

19:54

in-depth previewing of these cases, and so we're gonna spend

19:56

a good amount of time on them here. And

19:59

to help us sort through these. cases and the issues that they

20:01

raise, we are delighted to be joined

20:03

by law and technology scholar Evelyn Duak, an

20:05

assistant professor of law at Stanford Law School

20:07

and a terrific thinker and writer on all

20:09

the issues these cases raise. Welcome to

20:11

the show, Evelyn. Thanks so much

20:13

for having me. Long time, first time. It's a

20:15

real pleasure. We

20:17

should also note that Evelyn hosts their

20:20

own podcast, Moderated Content, which we can

20:22

only assume Evelyn is about Eugene Debs

20:24

and how the government threw labor organizers

20:26

and draft of lectures in jail, since

20:28

that's what content moderation means. That's right.

20:30

It's a deep history of content moderation

20:33

in the United States from the founding

20:35

to the present. That's our coverage. Alien

20:38

and Sedition Act, right? Basically content

20:40

moderation. So more

20:42

seriously, Evelyn, don't worry listeners, this inside joke

20:44

will become more clear once you hear Sam

20:46

Alito's plus and voice. What do the

20:49

challenge laws in these cases do and

20:51

how could they potentially change social media?

20:53

Yeah, great. So I mean, one thing

20:55

that became clear during the oral argument

20:57

on Monday is that apparently no one

20:59

really knows what the laws do in

21:02

their actual operation, because these

21:04

were pre-enforcement, facial challenges to the laws, which

21:06

I'm sure we'll talk about. They

21:09

haven't gone into effect. No state court

21:11

has interpreted their provisions and they are,

21:13

shall we say, not the most carefully

21:15

drafted laws. So a

21:17

lot of Monday was spent guessing at

21:19

exactly how these laws would operate and

21:22

who they would even apply to was

21:24

a big question that kept coming up. But

21:26

at a high level, as Kate said, the

21:28

states weren't shy about saying that the purpose

21:30

of these laws was to prevent platforms from

21:32

doing some of the forms of content moderation

21:34

that they currently do. And they

21:37

each do this slightly differently. So

21:39

Florida's law prevents social media platforms

21:41

from moderating any content posted by

21:43

a journalistic enterprise or content by

21:45

or about a candidate for public

21:47

office, free guesses who they

21:49

were thinking about when they wrote that provision.

21:52

And they also, they also, Florida

21:54

would also require platforms to do content moderation

21:57

in a quote unquote consistent manner. Texas's

22:00

law essentially says that platforms can't engage

22:02

in viewpoint discrimination when they moderate their

22:04

users or their users' content. As

22:07

the Fifth Circuit put it, basically,

22:10

Florida's law prohibits all moderation of

22:12

some speakers, while Texas's law prohibits

22:14

some moderation of all speakers. So

22:17

in theory, what the states suggested that

22:19

the laws would do is something like

22:21

if a platform is going to allow

22:23

pro-vaccine speech, it also has to allow

22:25

anti-vax speech. Or if they are boosting

22:28

pro-choice speech, they better also be boosting

22:30

pro-life views. That's the sort of theoretical

22:32

application. But one of the

22:34

things that came up in oral argument on Monday too is that

22:36

this is the real world, and it's

22:38

not actually clear that these laws would

22:40

result in platforms allowing a lot more

22:43

speech if they went into effect. Because

22:45

some of the content that they take down is

22:48

so distasteful to their users and, more

22:50

importantly, to their advertisers. For

22:53

example, if we're talking about content from

22:55

ISIS and terrorist content, things like that,

22:58

advertisers just don't want their ads appearing

23:00

alongside. Platforms, their answer might

23:02

be, well, we're just not going to allow

23:04

anyone to talk about terrorist content at all,

23:07

whether they're arguing for or

23:09

against, and they'll take down the entire

23:11

subject matter. Or as Net Choice's lawyer

23:13

Paul Clement suggested, we might say, let's

23:15

do only puppy dogs in Florida, at

23:17

least until we can get this straightened out. Because

23:21

they can't have... Instagram. Your

23:25

Instagram's a lot more, I

23:27

guess, friendly than mine.

23:30

We have the most wholesome Instagram feed

23:32

of anyone we've ever met. I

23:37

think about that for two seconds, and now it makes a lot of sense. Actually,

23:40

Phoebe's feed, Stevie Nicks' feed is very pure. But most

23:42

of the time, that's not actually what a feed on

23:45

social media looks like. And that was the sort of

23:47

potential end result that Paul Clement,

23:49

one of the lawyers for the challengers, suggested

23:52

would follow from allowing these laws to take

23:54

effect. That essentially, it'd be intolerable to

23:56

be required to host this so-called balanced speech.

23:58

Another example that Clement gave us... I thought

24:00

helpfully illustrates the problem. ISIS is obviously a

24:02

good one too, but it would require platforms

24:05

that hosted suicide prevention content to

24:07

also host suicide advocacy. I

24:09

mean, these would be intolerable things for platforms to

24:11

do. And so what Clement suggested was it might

24:13

just lead to the end of any

24:15

useful version of a social media platform if platforms

24:18

had to comply with these laws. So, um,

24:20

so that's about kind of practical consequences. Let's

24:22

take a step back though and talk, uh,

24:24

just kind of generally, like what are the,

24:27

the constitutional arguments that Paul Clement, the platforms

24:29

in general are making against the

24:31

permissibility of these laws. Yeah. So

24:33

the platform's essential argument is that content

24:35

moderation is a first amendment protected activity.

24:37

So it's just like the editorial choices

24:40

that newspapers make when they decide what

24:42

goes into their products. Uh, that's all

24:44

the platforms are doing when platforms write

24:46

and enforce their rules. They are speaking

24:49

for the purposes of the first amendment.

24:51

So when they choose what material to

24:53

allow on their sites or when they

24:55

arrange and rank that material in users

24:57

newsfeed to highlight some stuff over others,

25:00

all of those choices are expressing their values and

25:02

the kind of content that they want to

25:04

be associated with and that that's a right

25:07

protected by the first amendment. This is the

25:09

kind of decision that newspapers and bookstores make

25:11

all the time, um, when they're choosing what

25:13

content to serve their customers and that there's

25:15

a long line of first amendment precedence protecting

25:18

these kinds of entities when they curate, arrange

25:20

and present other people's speech

25:22

to audiences. The reason

25:24

why people get so worked up and

25:26

angry at platforms for their content moderation

25:28

choices is precisely because they understand them

25:30

to be expressing a viewpoint and making

25:32

a value judgment when they make those

25:35

choices. And specifically as to whether the

25:37

platforms are actually expressing a view, you

25:39

know, through content moderation, I thought justice

25:41

Kagan illustrated with a real world example

25:43

how content moderation and algorithms really does

25:45

affect the product on social media that

25:47

is feeds that people see here and

25:49

read. So let's play that clip here.

26:00

Content rules had changed and their feeds

26:02

changed and all of a sudden they

26:04

were getting a different online newspaper So

26:07

to speak in a metaphorical sense

26:09

every morning So I think that

26:11

does drive home if it all seems kind of

26:14

abstract if you've used Twitter acts or other platforms

26:16

Like maybe maybe it does kind of start to

26:18

land why it does matter that there be some

26:20

degree of editorial control So I

26:22

guess Evelyn maybe will you also walk through?

26:25

Why the states say these laws are

26:27

constitutional and maybe just to take a beat on the

26:29

kind of political valence which you know you alluded to

26:32

the Kicking Donald Trump off of

26:34

Facebook and Twitter was the impetus for these

26:36

laws but they also seem

26:38

to be somewhat animated by what they

26:40

perceive as over policing to eliminate anti-vax

26:42

or Election denial election denialism, right? So

26:44

so it is obviously these are red states that

26:46

have enacted these laws and so maybe this goes

26:49

without saying but that's essentially the Political backdrop but

26:51

of course that's not precisely the arguments that the

26:53

states are making in the Supreme Court in defense

26:55

of their law So what are they saying about why these

26:57

laws are permissible? Yeah, so

26:59

the states both argue essentially that this

27:02

is conduct not speech. There's nothing to

27:04

see here First Amendment. Let's move on

27:07

Thank you. Nothing to see here They

27:10

essentially say like platforms are much

27:12

more like telephones or mail carriers

27:14

that they facilitate people's communication But

27:17

they aren't themselves speaking when they

27:19

host and distribute content So because

27:21

they're not speaking their

27:24

business activities can be regulated just like any

27:26

other normal business activity and they can be

27:28

subject to Anti-discrimination norms that

27:30

you know, we don't want businesses

27:32

discriminating based on viewpoints and so you know

27:35

One of the things that's really interesting about

27:37

this case to note here is that both

27:39

sides are really claiming the mantle of free

27:41

speech Like this is not like there's one

27:43

pro free speech side of one anti speech

27:45

Like oh we need to suppress the speech

27:47

side both sides come in and say we

27:49

are here in the interest of free expression

27:51

And so the platforms position themselves as the

27:53

speakers and say we deserve protection under the

27:55

First Amendment from state interference And that you

27:57

know, if the First Amendment means anything, I

27:59

mean protection from the government. And

28:01

the states instead position themselves as a

28:04

champion of free speech, but for the users,

28:06

for the people who use the social media

28:08

platforms who are in their view being censored

28:11

by the platform. So

28:13

we'll try to sort out these kind of

28:15

competing free speech claims in a second and

28:17

how the court received them. But just quickly

28:19

by way of procedural history, the Court of

28:21

Appeals for the 11th Circuit struck down the

28:23

Florida law, concluding it could not be enforced.

28:25

The 5th Circuit upheld the Texas law because

28:27

of course, and then in 2022, a divided

28:31

Supreme Court stayed that 5th Circuit decision, which

28:33

had the effect of preventing the Texas law

28:36

from going into effect. The

28:38

Supreme Court's decision had an odd breakdown

28:40

with the Chief Justice, Justice Kavanaugh, Justice

28:42

Barrett, voting with then Justice Breyer

28:44

and Justice Sotomayor to stay the law.

28:46

And that's of course some indication about

28:48

where at least some of the justices

28:50

might have been leaning going into the

28:52

argument. So with that kind of backdrop,

28:54

Evelyn, any high level reactions to the

28:57

argument you came away from will obviously

28:59

go into some of the more specific

29:01

details later. Yeah, I mean, the

29:03

arguments were way more interesting than I anticipated,

29:06

honestly. So from what

29:08

I've said so far and what you just said,

29:11

you might have gathered that the parties

29:13

came in with these really extreme positions,

29:15

right? And the two lower courts, the

29:17

circuit split staked out those two extreme

29:19

positions as well. On the

29:21

one hand, either platforms can pretty much never

29:23

be regulated according to the platforms themselves in

29:25

the 11th Circuit, or they can always be

29:28

regulated just like any other business according to

29:30

the states in the 5th Circuit. And there

29:32

wasn't a lot of nuanced conversation

29:34

about the vast, vast space

29:36

in between those two positions. But

29:39

a significant number of justices seemed very

29:41

interested in that vast, vast space between

29:44

those two positions and didn't seem to

29:46

want to take such an extreme stance,

29:48

particularly in this early position with this

29:50

sort of facial challenge without knowing what

29:53

the laws do and without knowing all

29:55

of the facts of how they might

29:57

apply. And we're looking to proceed more

29:59

court. cautiously and to try and find a

30:01

middle road through the ticket.

30:04

And I think there was this

30:06

real appreciation, not from everyone, but

30:08

from enough justices, that

30:10

this stuff is really tricky and important and that

30:12

we might want to take things slowly and not

30:14

back ourselves into a First Amendment corner that we

30:17

can't get out of in a fast-changing world. So

30:19

that's really interesting and it touches on both the merits

30:21

questions that the case or the case is raised,

30:24

but also the remedy questions. Like

30:26

if the court is going to do something here,

30:28

what should it do if it's not just let

30:30

these laws stand intact or strike them down in

30:33

their entirety? How should the court think

30:35

about how to proceed? So maybe let's

30:37

divide those two out, start with merits and

30:39

then we'll turn to remedy. So the merits

30:41

question, just generally speaking, whether the justices think

30:44

these laws infringe social media companies' First Amendment

30:46

rights of speech and expression, let's

30:48

start by playing a couple of clips. And I

30:50

think maybe let's start off with a clip from the Chief Justice seeming

30:53

to suggest that the law or

30:55

the laws violate the company's First Amendment rights. So

30:57

right out of the gate, he sort of likened

30:59

the laws to prototypical First Amendment violations, which you

31:01

can hear in this clip. You

31:04

began your presentation with talking

31:06

about, concerned about the power,

31:09

market power and ability of the

31:11

social media platforms

31:14

to control what people do. And

31:17

your response to that is going to

31:19

be exercising the power of the state

31:21

to control what goes on on the

31:24

social media platforms. And I

31:26

wonder since we're talking about the First Amendment,

31:28

whether our first concern should be with

31:31

the state regulating what

31:34

we have called the modern public

31:36

square. And we already played

31:38

a little bit earlier, the Kagan clip that

31:41

likened social media companies' content moderation policies to

31:43

editorial discretion. That framing also suggests

31:45

that she too thinks these laws trigger First Amendment

31:47

scrutiny. Now we're not suggesting that they don't have

31:49

any hesitation with respect to remedy, but at least

31:52

on merit questions, they

31:54

did seem to be quite concerned about the

31:56

First Amendment implications of the law. And here

31:59

is Justice Sotomayor. Maior sticking out a similar

32:01

view. I have a problem with

32:05

laws like this that are so broad

32:08

that they stifle speech

32:10

just on their face. And

32:12

then finally, Kavanaugh and Barrett seem to be with this

32:15

group as well, where in the interest of time, not going

32:17

to play clips right now because they will

32:19

tee up some other issues we will want to talk

32:21

about later. But that's at least five for some

32:24

real concerns about the First Amendment and the

32:26

kind of tolerability of the law under basic

32:28

First Amendment principles. And

32:31

Evelyn, you mentioned that not all of

32:33

the justices necessarily appreciated the new laws

32:35

in these issues. And there were some

32:37

justices who were very obviously

32:39

sympathetic to the laws kind of

32:43

in their entirety. And that was mostly

32:45

Justices Thomas and Alito, shocking I know,

32:47

but Justice Thomas for his part seemed

32:49

to question whether the social media companies

32:51

were speaking or engaged in expression through

32:53

content moderation. He kept asking, what

32:55

are you saying or what is an algorithm saying? Since,

32:57

of course, everyone knows the only true expression and protected

33:00

speech under the First Amendment is baking cakes, but

33:02

only for straight weddings and making websites again

33:04

only for straight weddings. But

33:06

then Sam Alito, he really showed

33:08

up this week at oral argument because

33:11

he downed a few red poles and

33:13

got a true conservative grievance warrior mode.

33:15

So we're going to play a clip

33:17

and then unpack it. And this is the

33:20

one I was teasing Evelyn about in the intro. So

33:22

here you go. There's a

33:24

lot of new terminology bouncing around in

33:26

these cases and just out of curiosity.

33:30

One of them is content moderation. Could

33:33

you define that for me? So

33:35

you know, what content moderation to

33:37

me is just editorial discretion. It's

33:40

a way to take the all of the

33:42

content that is potentially posted on the site,

33:44

exercise editorial discretion in order to

33:46

make it less offensive to users

33:49

and advertisers. Is it anything more

33:51

than a euphemism for censorship? It

33:54

might just ask you this. If somebody in

33:56

1917 was prosecuted and thrown

33:58

in jail for... opposing

34:01

US participation in World War I.

34:03

Was that content moderation? Evelyn,

34:06

we assume you're going to be playing that

34:08

Alito clip to instruct the young minds of

34:10

America how the First Amendment works. Yeah, I

34:12

think that's right. It's really going to make

34:15

real for my students the

34:17

great threats that previous

34:20

historical dissidents faced when

34:23

being subjected to these laws, yes. So

34:27

there's a lot going on in this clip.

34:29

I can't help but just offer a few

34:31

thoughts. I want to make clear that, listeners,

34:33

you did actually hear Sam Alito

34:35

likening Facebook and YouTube removing certain

34:37

posts to the federal government locking

34:39

up labor organizers for opposing the United

34:42

States participation in World War I. This

34:44

is a reference to the case of

34:46

Eugene Debs, whose conviction the Supreme Court

34:49

upheld under the Espionage Act. Sam,

34:51

in case it helps, Facebook jail isn't

34:54

real jail. I recognize posters got a

34:56

post, and Sam Alito would know.

34:58

But Facebook is not actually the government. And

35:01

yet this was not stopping Sam.

35:03

And I also, if anyone was

35:05

going to uphold Eugene Debs'

35:07

conviction for labor organizing and

35:10

opposing US involvement in World War I, it would be

35:13

Sam does copy Alito Alito. This

35:15

guy was a lone dissenter in a bunch

35:17

of free speech cases ranging from US versus

35:20

Stevens, Snyder versus Phelps. He's written so many

35:22

anti-labor decisions, so on and so forth. And

35:24

this moment just was the

35:27

moment of the case for me. Didn't

35:29

it call to mind Kyle Bragg, who had

35:32

formerly been the leader of the New York

35:34

Union that's part of SEIU, basically instructing Sam

35:36

Alito to get the working man's name out

35:38

of his mouth when Alito was basically making

35:40

a similarly cynical point in the

35:42

gun case, Bruin, during that oral argument? It

35:45

had such echoes of that to me. Yeah, I

35:47

heard Kyle Bragg's voice in my mind. As Alito was

35:49

asking the question. It was also, he

35:51

doesn't invoke Orwell in the clip we just

35:54

played, but his suggestion that there is something deceptive

35:57

and misleading about the very label

35:59

of consciousness. moderation that in fact something much

36:01

darker is a foot on the part of these platforms.

36:04

I don't even know how many times he evoked Orwell, but it was just

36:06

like, I'm not sure. Again, I

36:09

think that metaphor actually there might be something

36:11

to it, but I don't think that what's

36:13

Orwellian is the companies. I think it's the

36:15

states. But you're close, Sam. You're so close.

36:18

But in any event, or Alito

36:20

himself, right? Like his, his, his,

36:22

euphemizing content moderation to Eugene Debs is Orwellian.

36:24

Okay. So it was in the neighborhood. He just

36:26

needed to sort of shift, shift things slightly. But

36:28

so in any event, Alito was in rare form.

36:30

And there's more to say about merits, but that

36:32

is a kind of a rough rundown, I think,

36:35

of where the justices were on the merits. But

36:37

we do want to complicate them a little bit

36:39

as Evelyn, you already started to do we're all

36:41

law professors. And we can't help note some of

36:43

the aspects of these cases that are definitely more

36:45

complicated than they might seem at first blush. I

36:47

think we at least, Lee

36:49

and I and Evelyn, I presume you do as well think that,

36:51

you know, these laws as written are obviously unconstitutional in

36:53

important respects. But that doesn't mean that this

36:55

is an easy or simple set

36:58

of issues or set of cases. And one of

37:00

the potential complications isn't about top

37:02

line constitutionality, but just a complication in the

37:04

case relates to an issue that was part of two

37:06

cases the court heard last term, which is

37:08

Twitter versus Tomna and Google versus Gonzalez.

37:10

So those cases partially concerned the reach

37:13

of Section 230, a provision

37:15

in the Communications Decency Act that insulates

37:17

certain social media companies from civil

37:19

liability, if they're engaged in content

37:21

moderation. And the court didn't say anything about

37:24

Section 230 in those cases, right, just

37:26

decided that social media companies weren't liable

37:28

for other reasons. But some of the

37:30

justices, including Justice Thomas, thought that the

37:33

social media companies arguments in the cases we're

37:35

talking about today were inconsistent with their representations

37:37

or arguments in the Section 230 cases.

37:40

Since here, the companies are saying that

37:42

we are publishers, right, that's what we're

37:44

doing, exercising editorial control. And

37:46

there, they aren't at least for certain purposes,

37:49

in that you can sue publishers for materials that

37:51

they publish. So I'm curious, Evelyn, what

37:53

you made of that. Is there tension or inconsistency between

37:55

the Section 230 issue, even if

37:58

not like the cases as they were decided last? term

38:00

and these cases. Yeah,

38:03

so I think Paul Clement and

38:05

Solicitor General Prilogar deserve like medals

38:07

for patients, honestly, for

38:10

the number of times they

38:12

had to slowly and gently

38:14

correct totally fantastical accounts

38:17

of the history of Section 230. It

38:19

was really very impressive because

38:23

there is nothing at the least

38:25

inconsistent between these two positions. And

38:27

in fact, it's directly the opposite.

38:29

It's precisely because the common

38:31

law position is that publishers are speaking

38:33

for First Amendment purposes when they choose

38:36

to publish the content that

38:38

they choose, that Section 230 is necessary.

38:40

Because in the early days of the

38:42

internet, a court found that platforms could

38:44

be liable for the content of users

38:46

on their services if they engaged in

38:48

any kind of content moderation, and that

38:50

that liability would either disincentivize them from

38:52

content moderating at all or force them

38:55

to moderate way too heavily in order

38:57

to be risk averse and

38:59

avoid any chance of liability. And

39:02

Congress didn't like that policy outcome. And so Congress

39:04

took the view that instead what they needed to

39:06

do is provide platforms with immunity in the form

39:08

of Section 230 precisely so

39:10

they could moderate without fear of

39:12

liability. It's

39:15

reaction to that position

39:17

that makes Section 230 necessary. The

39:21

Section 230 cases included this moment in

39:23

Google versus Gonzalez that we wanted to

39:25

play, which was a rare recognition of

39:28

humility among the justices. On

39:30

the other hand, I mean, we're a court. We

39:33

really don't know about these things. These

39:36

are not like the nine greatest experts on

39:38

the internet. It seems like

39:40

that's a rationale the justices should keep in mind for

39:42

these cases too. There are also

39:44

some other through lines worth flagging here as far

39:47

as how these cases relate to other matters the

39:49

justices have decided. One is, as

39:51

you noted, Evelyn, you know, the state

39:53

sought to depict these laws as basically

39:55

public accommodations laws, anti-discrimination measures. And some

39:57

of the justices were receptive to this

39:59

idea. that the social media companies are

40:01

essentially businesses that hold themselves out as willing

40:03

to do business with the public and with

40:05

anyone, and therefore they should have to post

40:08

content, right? Any content from anyone, no matter

40:10

what it says, to which we say, do

40:12

you remember your decision last term in 303

40:14

Creative? Like the decision that literally said,

40:17

a business who holds themselves out to

40:19

the public can't be prohibited from discriminating

40:21

on the basis of sexual orientation in

40:23

some applications and in some cases. But

40:25

more generally, I feel like there is

40:28

a category error in thinking about these

40:30

social media companies as common carriers with

40:32

respect to content moderation, because there's a

40:35

difference between removing content based on what

40:37

a post says versus who the user

40:39

is or status. And this just seemed

40:41

to go right over there for whatever

40:44

reason. But I think the

40:46

more interesting parallel for me is a contrast

40:48

between these cases and

40:50

campaign finance, because the Texas and Florida

40:52

laws seem to be based in part

40:55

on an equalization rationale. The idea that

40:57

social media companies are not giving equal

40:59

airtime or fair shakes to unhinged views

41:01

like the 2020 election was mired in

41:03

fraud or ivermectin fears COVID, etc. And

41:05

the Supreme Court has rejected the

41:07

idea that government does equalize

41:10

airtime in the marketplace of ideas in

41:12

the campaign finance space, like in Citizens

41:14

United. So Justice Kavanaugh channeled this logic,

41:16

you know, as a way to invalidate

41:18

the Texas and Florida laws. So Evelyn,

41:20

I guess I would be really

41:22

curious to hear how you think about

41:25

the relationship between these laws, right, and

41:27

the theory in Citizens United. And, you

41:29

know, that as a possible rationale for

41:32

invalidating them. Yeah, great. I

41:34

mean, one of the things that I

41:36

find so fascinating about this moment and

41:38

these cases, is that

41:40

the politics are all really weird and

41:42

scrambled here, right. So Genevieve Laker and

41:44

I have written about this, about, you

41:46

know, the fact that exactly as you're

41:48

describing Leah, until very recently, it was

41:50

conservatives who are most closely associated with

41:53

and responsible for this deregulatory tilt of

41:55

the First Amendment, and the idea, the

41:57

embrace of the really privately owned and

41:59

operated. marketplace of ideas. What the

42:01

First Amendment means is that the government

42:03

gets out of the way and the

42:06

rest sort of happens and pans out

42:08

as it does. Progressives, meanwhile, were the

42:10

primary critics of that approach and the

42:12

expansive discretion that it grants to powerful

42:15

corporate actors and the distortions that that

42:17

creates. The campaign finance cases are the

42:19

epitome of that dichotomy and that divide

42:21

where the conservative justices were

42:23

leading the charge against the regulations that were

42:26

trying to remedy these distortions in

42:28

the economic marketplace that led to the distortions

42:30

in the marketplace of ideas and the liberal

42:32

justices who had a more positive view of

42:34

what the First Amendment allowed in terms of

42:36

seeing regulations as a way to enhance and

42:38

not only abridge free speech. And

42:41

now things have gone topsy-turvy, right? You

42:43

have these Republican states passing these laws

42:45

to regulate large business enterprises and amplify

42:47

certain voices

42:50

that they worry are otherwise being squelched

42:52

in the marketplace of ideas and that

42:54

their main audience on the court are

42:56

the court's most conservative members. They're the

42:59

people that these Republican states are talking

43:01

to. And that's why, you know, when

43:03

I said that the arguments were more

43:05

interesting than I expected, I was, this

43:07

is why I was really happy to

43:09

hear the liberal justices aren't necessarily

43:12

going to fully and completely buy into the libertarian

43:14

vision of the First Amendment that the platforms were

43:16

offering, that Justice Kavanaugh every so often would jump

43:19

up, pop up in the middle of argument and

43:21

remind us that what the First Amendment says is

43:23

no abridgement of speech by the

43:25

government. And so if we're not talking about

43:27

the government, like what are we even doing

43:29

here? And, you know, Justice Kavanaugh's idea of

43:31

an ideal speech environment is not my idea

43:34

of an ideal speech environment. And, you know,

43:36

I don't think that the only

43:38

threat to free expression can ever come from

43:41

the government. And so I hope

43:43

that we can come up with an

43:45

answer to the First Amendment in the digital

43:47

age that isn't just, well, you know, government-backed

43:50

corporations fine. Let's

43:52

move on. Yeah. And I think

43:54

part of the dynamic that you're referencing is really

43:56

about whether these social media companies are just like

43:58

any old company, right? and if they

44:01

are engaged in speech, it doesn't necessarily mean,

44:03

nor should it necessarily mean, that the government

44:05

can't touch platform policies at all, right? Justice

44:07

Jackson asked about this at moments because the

44:10

logic of the social media company's position, that

44:12

everything they're doing is expressive, and any attempt

44:14

to regulate them necessarily regulates on the basis

44:17

of speech, could limit the government's ability to

44:19

require certain forms of content moderation, perhaps to

44:21

make social media companies safer for children or

44:23

less susceptible to hate speech, right, or less

44:26

susceptible to misinformation, etc. And

44:28

so the Texas Solicitor General talked about this

44:30

a lot, although much less eloquently than

44:33

you did just now, Evelyn, because he

44:35

invoked an internet meme that I just

44:37

feel the need to play here. You

44:39

know, the expression like, you know, sir, this is a

44:41

Wendy's, there has to be some

44:43

sort of way where we can allow people

44:45

to communicate. Sir, this is in fact

44:48

a Wendy's. I, you know, whatever.

44:51

I mean, it's not the most incorrect thing he said

44:53

all day. It's not the most

44:55

incorrect thing he said all day. Let's

44:57

pivot now to the issue of remedy. And

45:00

so, you know, I do think the

45:02

remedial discussion was, as you alluded to

45:05

earlier, Evelyn, informed by maybe

45:07

a surprising degree of sort of nuance. There's

45:09

a lot of concern about these laws violating

45:11

the First Amendment, but, you know, and maybe

45:13

there were some real qualms about upholding an

45:15

injunction that invalidated the law on its face,

45:18

and maybe just a definitional point for listeners who aren't

45:20

steeped in the terminology. A facial challenge just means

45:22

the plaintiffs brought this case, essentially saying

45:24

the law can't be applied to anyone about

45:27

anything the law might cover, and they asked the court to

45:29

invalidate the law on its face, basically meaning that it

45:31

cannot be applied at all. And

45:33

that some of the hesitations seem to come from

45:35

the fact that the Supreme Court has some

45:38

cases seeming to say that in order for

45:40

courts to invalidate laws on their face, courts

45:42

have to conclude that there are no valid

45:44

or legitimate applications of the law. Now, I

45:46

think when you probe, it's pretty clear that

45:48

actually those cases don't even really mean what

45:50

that short distillation suggested, and they

45:53

don't properly apply in a First Amendment case

45:55

like this. Courts haven't used them that way,

45:57

but that at least seemed to be getting

45:59

more serious attention that I think. idea that

46:01

laws shouldn't be invalidated on their face if

46:03

they could be legitimately applied in some circumstances.

46:05

So what, Ellen, did you make of

46:07

that? What possible valid

46:09

applications of these laws might there be?

46:11

And does the existence of some potentially

46:13

valid applications undermine the case for

46:15

essentially facially invalidating these laws, wiping them

46:18

away in their entirety? Yeah.

46:20

I mean, this was an area of a

46:22

lot of confusion and back and forth during

46:25

the argument. And it was really a product

46:27

of the really extreme positions that the parties

46:29

had taken all the way through the course

46:31

of this litigation from the get-go, this idea

46:33

that it's either completely valid in all applications

46:36

or completely invalid in every application.

46:38

And so the court that clearly a number

46:40

of justices who weren't agreeing with that position

46:42

was they were concerned, well,

46:44

what do we do when we don't

46:46

want to adopt either of your extreme positions?

46:49

Two buckets of potential constitutional

46:52

applications to these laws came up during

46:54

oral argument. The first was

46:56

primarily in relation to the Florida law

46:58

and the idea that it might apply

47:00

to non-expressive businesses as well. So platforms

47:03

like Uber, Venmo, Dropbox, Amazon Web Services,

47:05

or online marketplaces like Etsy to the

47:07

extent that they're just facilitating the sale

47:09

of goods. The idea that these platforms

47:11

aren't primarily in the business of providing

47:13

a speech product. And so

47:15

the constitutional issues are going to be different

47:18

there. Now, Texas doesn't cover

47:20

those platforms, or at least it was saying

47:22

in oral argument that this is only applying

47:24

to speech platforms, which brings us to the

47:27

second bucket of possible valid applications of those

47:29

laws, which is that a

47:31

number of justices seem to be agreeing.

47:33

I think I counted four at least,

47:35

that these laws would

47:37

be unconstitutional as applied to the paradigmatic

47:40

social media platforms and their news feeds,

47:42

like to the extent that they're curating

47:44

and arranging content in people's news feeds.

47:48

That seems problematic as a matter of the First Amendment.

47:50

But once you move away from that

47:52

to other parts of the social media

47:54

platforms that operate much more like common

47:56

carriers, they're not sure what the constitutional

47:59

analysis is. is there. So we're talking like DMs,

48:02

maybe WhatsApp, email, Facebook

48:04

Marketplace, this idea that you can't just

48:06

bundle everything together, all of these different

48:08

kinds of functionalities, all of these different

48:10

kinds of apps, basically. As long as

48:12

you have the same logo at the

48:14

top of the page,

48:16

you can't just then say, well, it's all

48:18

First Amendment protected and it shields all of

48:21

it, because that would just

48:23

sort of be a workaround

48:25

to get around the regulation to just

48:27

sort of bundle it all together. Solicitor

48:30

General Prologo gave this great analogy of Amtrak.

48:32

She said that you can regulate Amtrak like

48:34

a common carrier with respect to the transportation

48:36

of passengers, but if it

48:38

creates some kind of magazine for the passengers

48:41

to pursue, that's entitled to full First

48:43

Amendment protection. But the converse is also

48:45

true, right? Just because Amtrak produces a

48:47

magazine doesn't mean that suddenly everything else

48:49

it does in its business is

48:52

entitled to full First Amendment protection. Yeah,

48:54

so that is a great point to highlight.

48:57

And while I agree with you that there

48:59

was more nuance in particularly the merits discussion

49:01

than even I was expecting, the

49:03

remedy discussion frustrated me because as a federal

49:05

courts person, like the idea that a law

49:08

is only invalid on its face if it

49:10

is invalid in every single application is just

49:12

not actually the standard that the court has

49:15

applied in facial challenges. You know, Richard Fallon

49:17

has a famous article that the court has

49:19

cited, right? Facial challenges fact and fiction that

49:21

show this isn't true. It's definitely not true

49:24

in First Amendment matters, you know, like

49:26

overbreath or fagness. Paul Clement specifically noted

49:28

this right that the court has applied

49:31

a different standard. When the First

49:33

Amendment context, as my friend was indicating,

49:35

the question is whether or not the

49:37

statute has a plainly legitimate suite. So

49:39

it's not the Salerno. If there's one

49:41

little application somewhere, that's enough to save

49:43

the statute. And then right there

49:45

are also ways to say facial relief could

49:47

be warranted here, since if the purpose of

49:49

these laws is to force publication of certain

49:51

content, then they would be invalid in all of

49:53

their applications. So and then you have the fact

49:55

that like, if these laws suite more broadly,

49:57

right, then they have to, that's not necessary.

50:00

necessarily like a good thing as Paul Clements,

50:02

you know, pointed out as far as the

50:04

incentives it creates for states So we'll play

50:06

that exchange here. First of all,

50:08

that's not the standard with all due respect

50:10

I mean this court has never applied the

50:13

Salerno standard in the First Amendment case and

50:15

this would be the worst First Amendment case

50:17

in This court's history if you started down

50:19

that road because you can always put in

50:22

some provision into a statute That's innocuous and

50:24

then you say well There's a couple of

50:26

fine things in there you look at it

50:29

section by section and these sections are pernicious

50:31

From a First Amendment standard can't have content

50:33

about a political candidate. There's no constitutional application

50:35

to that So at various points the

50:38

justices really seem to be asking the lawyers

50:40

challenging the laws. How do we do this?

50:42

Is there a way out right? Can we

50:44

find the laws invalid with respect to these

50:46

big social media companies? News

50:48

feeds can we say the laws

50:51

on hold while maybe you narrow

50:53

the injunction? Injunction, etc And

50:56

this came up not only during the argument

50:59

of Paul Clements But also, you know solicitor

51:01

general pre-lager and they really seem to be

51:03

searching for a way to keep especially the

51:05

problematic application of these laws on

51:08

hold While not necessarily determining

51:10

their full scope when that was unclear.

51:12

I don't know. Was that your read

51:14

Kate? Yeah, and also I mean that

51:16

way I think would be a properly sort of humble

51:18

sort of way to proceed here because the

51:21

places I got really uncomfortable among others I

51:23

guess during the arguments were when you had

51:25

the justices just spitballing about their own Experiences

51:27

with like Etsy and it was like this Cannot

51:30

be the basis for reason decision-making is I

51:32

was on Etsy or sometimes I I DM

51:34

or I use uber And it was just

51:36

like I can't I can't believe that the

51:39

conversation is happening at this level. So I thought that

51:41

Clement was strong

51:43

in his suggestion that leave

51:45

these leave the injunction in place

51:47

and During the trial, you know

51:50

There had not been real proceedings that would

51:52

have allowed a trial court to really examine

51:54

this kind of questions of application in a nuanced Way

51:56

and so maybe a narrowing of an

51:58

injunction could happen down the road But

52:00

for the court itself to write an opinion

52:02

that seeks to do that based on the

52:05

thinnest of records and purely anecdotal Experiences of

52:07

the justices seemed to be wildly irresponsible, which

52:09

doesn't mean they won't do it But at least I thought Clement

52:11

was urging them in a constructive way in a different direction And

52:14

hopefully one where they don't say things that

52:16

would you know forever seem

52:18

to Insulate these companies from

52:21

any kind of government regulation because I do think that's why you

52:23

had Some interesting cross-pressure dynamics

52:25

on display was like these state

52:27

actors are very very suspect These laws

52:30

are deeply suspect, but these tech companies are

52:33

dangerous, too, right? So there are not really good actors

52:35

here And so

52:37

so I think that a huge

52:39

decisive win for either side Is

52:42

actually not great for democracy and our kind of collective

52:44

discourse and so that I think is the challenge in

52:46

these cases So

52:48

Evelyn any kind of final thoughts to leave

52:50

our listeners with as far as what to

52:52

look for when the court eventually releases an

52:55

opinion in these cases I Think

52:57

it will be really interesting to see how

52:59

they craft the remedies question because you know

53:01

You're right Paul Clement was sort of urging

53:03

them and and prelogo was urging them to

53:05

be narrow and cautious here

53:09

But they were sort of scrambling because that is

53:11

not how this had been litigated You know the

53:13

states didn't defend these laws on the

53:15

basis that they had other possible Constitutional

53:18

applications and the platforms came in swinging

53:20

they didn't like they were you know

53:22

changing position on their feet During

53:25

oral argument because it was clear that there were

53:27

enough justices that weren't buying their position that

53:30

you know these laws are Unconstitutionally

53:32

motivated and therefore you need to strike them down

53:34

entirely But it does leave the justices

53:37

in this awkward position of like not you know There

53:39

were all of these questions about like is this even

53:41

properly before us in order to To

53:44

answer these questions I will say

53:46

you know it's a little surreal to be talking about these

53:48

laws in this way as if They're not

53:50

the product of the culture wars that they were I

53:52

mean these laws were passed by Texas and Florida because

53:54

they were Angry at the big platforms of what they

53:56

were doing in their news feeds and they were not

53:58

shy about saying this And so it's going to be

54:01

kind of bizarre if they are now somewhat saved by

54:03

the fact that they were poorly drafted and also

54:05

possibly potentially unintentionally apply

54:07

also to Uber or the Facebook

54:09

Marketplace or DMs or something, which

54:11

is not the purpose of these

54:14

laws. But, you know, I

54:16

still kind of am really happy

54:18

about that outcome because I do think

54:20

we need to be cautious here. And

54:22

I was worried that these what should

54:24

be fairly easy cases for

54:26

First Amendment purposes might end up

54:29

making bad law because they are

54:31

easy and they lead to overbroad

54:33

statements by the court. Yeah,

54:35

the possibilities that you just noted seems

54:37

to be the opposite or maybe the

54:40

inverse of malevolence tempered by incompetence where

54:42

it's like malevolence seeded by incompetence. Right.

54:45

You've got to win one sometimes, right? Exactly.

54:48

Exactly. Well, thank you so

54:51

much, Evelyn, for joining us, listeners. If you

54:53

want to learn more, listen to Evelyn's podcast,

54:55

moderated content for more Folsom discussion of these

54:57

cases and other issues. Thanks very much.

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$5.99. This was a really big week for arguments at the Supreme

56:01

Court. The

56:12

court also heard arguments

56:14

in Garland v. Cargill, a case

56:16

about federal restrictions on bump stocks,

56:18

that is, devices that can transform

56:20

semi-automatic rifles into machines that can

56:22

fire hundreds of bullets per minute.

56:25

And before we get into the bump stock

56:27

rule and the argument in this case, here's

56:29

the background. So federal law restricts

56:31

and has long restricted machine guns. Since

56:34

1934, it has required registration of machine

56:36

guns and has imposed accompanying criminal penalties.

56:39

In 1968, Congress amended that law to

56:41

cover parts that facilitate automatic machine guns.

56:44

And in 1986, Congress amended the law

56:46

in order to ban transferring or possessing

56:48

machine guns. And this case

56:50

is about essentially what a machine gun is,

56:52

what is covered by these prohibitions. As

56:55

we've talked about before, in October 2017,

56:57

the deadliest mass shooting in American history

56:59

happened in Las Vegas, Nevada, where 58

57:02

people were killed and 500 more were

57:04

wounded, and the perpetrator carried that

57:06

out with a bump stock. A

57:08

bump stock is a device designed and

57:10

intended to allow users to convert a

57:12

semi-automatic rifle into something that shoots a lot

57:15

more bullets without the person holding the gun,

57:17

having to manually push or pull the trigger

57:19

or otherwise fire the weapon themselves. Usually

57:22

it works as the rifle can be continuously fired

57:24

with a single pull of the trigger, discharging hundreds

57:27

of bullets per minute. Bump stocks

57:29

trigger a cycle of bump shoot, bump shoot, where

57:31

after the trigger is pulled so long as the

57:33

trigger person continues to hold the device with forward

57:35

pressure, the device continuously fires. So

57:38

here is a clip going into a little bit more detail about

57:40

how it functions. So you'll hear Deputy Solicitor General

57:42

Brian Fletcher, who argued for the federal government

57:44

in this case and I thought was characteristically

57:47

precise and excellent. So here's Brian. To fire

57:49

a rifle fitted with a bump stock, the

57:51

shooter simply places his trigger finger on the

57:53

built-in finger ledge and uses his other hand

57:55

to press the front of the rifle forward.

57:58

As long as the shooter maintains that steady

58:00

forward pressure, the rifle will fire continuously until

58:02

it runs out of bullets. And it will

58:04

empty a hundred round magazine like the ones

58:06

used in the Las Vegas shooting in about

58:08

ten seconds. Those weapons do

58:11

exactly what Congress meant to prohibit when

58:13

it enacted the prohibition on machine guns,

58:15

and those weapons are machine guns because

58:17

they satisfy both disputed parts of the

58:19

statutory definition. So that's what

58:22

a bump dog is. After the Las Vegas

58:24

shooting, the Bureau of Alcohol, Tobacco, and Firearms,

58:26

or ATF, issued an interpretive rule in December

58:28

of 2018 that said that bump stocks

58:31

transformed guns into machine guns that are

58:33

restricted under federal law. And that was

58:35

actually during the Trump administration, right? This

58:37

is not a Biden era rule, but

58:40

the regulation was nevertheless challenged, and that's

58:42

what resulted in this case. So the question

58:45

here is, does the federal law restricting machine

58:47

guns allow the ATF to also restrict the

58:49

use of bump stocks? Should we start with

58:51

high level predictions? Yeah, you

58:54

know, I think this case is a

58:56

little bit difficult to predict. Justice Kagan,

58:58

Justice Sotomayor, Justice Jackson, think bump stocks

59:00

can lawfully be banned. Justice is Gorsuch,

59:02

Thomas, and Alito. And I think Kavanaugh

59:04

think not. And it was harder to

59:07

read the Chief Justice and Justice Barrett,

59:09

although I'm a little gun shy after

59:11

the SB8 case to conclude that Justice

59:13

Barrett might be inclined to be reasonable,

59:15

even if she acts reasonable at an

59:17

argument. I

59:19

don't know. Yeah, no, I think that's right. I

59:21

think that Barrett's performance and questions

59:24

and oral arguments are not reliable predictors of her

59:26

votes. And I think that I probably came out

59:28

a little bit more optimistic, but maybe because I

59:30

haven't fully internalized that lesson, because I did think

59:32

that she was likely with the other female justices

59:34

and that the four of them were a likely

59:36

vote to uphold this rule. And the only question

59:39

was really if there was a fifth vote, could

59:41

it maybe be Kavanaugh? Could it maybe be the

59:43

Chief? And I thought that was possible

59:46

to slightly more than 50-50 likely,

59:48

but I, you know, that this is even a close

59:51

call going in is pretty shocking, considering

59:53

it is the most modest effort to

59:55

I mean, there's very little left that

59:57

is banned, but machine guns are still

59:59

on the list. And that's what this is.

1:00:01

And it is only in the

1:00:04

most formalistic, but also, I think, the

1:00:06

worst kind of textualism that John of

1:00:08

the Mitchell was demonstrating during this argument

1:00:10

that could possibly result in a conclusion

1:00:12

that this rule is impermissible as a

1:00:14

matter of the meaning of the statute

1:00:16

at issue. And yet, so the fact

1:00:18

that it's even a possibility should just

1:00:20

like to show us how far we

1:00:22

have strayed from reasoned statutory interpretation and

1:00:24

judicial decision making more broadly. Totally

1:00:27

agree. And we'll get into that kind of

1:00:29

textualism a little bit later. But before we

1:00:32

get into those thoughts, I again wanted to

1:00:34

start it off with Sam

1:00:36

Alito, who again, just showed up. He

1:00:38

showed up and showed out this week

1:00:40

in exchange between Sam Alito and Jonathan

1:00:43

Mitchell, which just perfectly encapsulates

1:00:45

the ridiculousness of the place. So

1:00:47

I'm just going to play this

1:00:49

exchange to let it marinate. Can

1:00:53

you imagine a legislator thinking

1:00:57

we should ban machine guns, but we should

1:00:59

not ban bump stocks? Is there any reason

1:01:01

why a legislator might reach that judgment? I

1:01:03

think there is. Bump stocks

1:01:05

can help people who have

1:01:08

disabilities, who have problems with finger

1:01:10

dexterity, people who have arthritis in their fingers.

1:01:12

There could be a valid reason for

1:01:15

preserving the legality of these devices

1:01:18

as a matter of policy, even while

1:01:20

similar weapons such as the fully automatic

1:01:22

machine guns are being banned. I

1:01:26

mean, the amount

1:01:28

of material for your book, Leah,

1:01:30

that Justice Alito is actually the

1:01:32

disability justice advocate, like against

1:01:34

the sort of tyrannical and overreaching ATF seeking

1:01:37

to ban bump stocks for individuals who might

1:01:39

not otherwise be able to operate conventional machine

1:01:41

guns. Like that's actually the deep current in

1:01:43

this case. And I'm so appreciative that Sam

1:01:46

Alito cleared that up for all of us.

1:01:49

He heard my call for a research assistant,

1:01:51

Melissa's call for a research assistant last

1:01:53

episode and he was like, I

1:01:55

volunteer, I volunteer. You

1:01:57

know, I use various nicknames.

1:02:00

names for the man. I'm not clear whether

1:02:02

this is like woke Leto, him positioning himself

1:02:04

right as a defender of the weak, right

1:02:06

in specious ways, or troll Leto like, he's

1:02:08

like, let me come up with a justification

1:02:10

that like you lives with like and try

1:02:12

to like throw it in your face, even

1:02:14

though it doesn't make any sense at all.

1:02:16

Because of course, he shows no care or

1:02:18

attention to the fact that the

1:02:20

kind of mass gun firings enabled by

1:02:22

bump stocks can endanger people with conditions

1:02:24

that make it harder for them to

1:02:26

suddenly flee or take cover right instead,

1:02:28

he just decides to, you know, get

1:02:30

Mitchell to say Congress was protecting people with

1:02:32

disabilities by allowing them to fire hundreds of

1:02:34

bullets a minute with a single pole. Justice

1:02:38

Sotomayor was not really having it.

1:02:40

So let's play her responding to

1:02:42

that. Why would even

1:02:45

a person with arthritis? Why

1:02:47

would Congress think they needed to shoot 400

1:02:51

to seven or 800 rounds

1:02:53

of ammunition under any circumstance? You

1:02:55

can't if you don't let a

1:02:57

person without arthritis do that.

1:03:00

Why would you permit a person with arthritis

1:03:02

to do it? So I

1:03:05

was glad that she did not let that representation

1:03:07

go on challenge. So maybe a

1:03:10

couple big picture thoughts. And then let's go a little bit

1:03:12

deeper on some of the aspects of the argument. One

1:03:14

is that, as we said, when we preview this

1:03:17

case, this is not a Second Amendment case. But

1:03:19

the court definitely was bringing some kind of

1:03:21

Second Amendment energy or principles to the argument.

1:03:23

And maybe by this, we mean something like

1:03:25

normal principles of law and legal analysis and

1:03:27

analytical standards fall by the wayside when

1:03:30

a case involves guns. I think that is

1:03:32

essentially what we saw at play here because,

1:03:34

you know, let's offer a couple of examples.

1:03:36

So one, some justices, specifically,

1:03:38

Neil and Brett, seemed

1:03:40

very concerned about the possibility that bump

1:03:42

stock owners would find themselves in legal

1:03:44

trouble if they didn't know the bump

1:03:46

stocks, which had previously been legal, were

1:03:49

now illegal. Anytime

1:03:51

the law changes, that's a possibility. And

1:03:54

it does not normally seem to bother

1:03:56

them very much. And yet here they

1:03:58

were deeply, deeply concerned. But

1:04:00

it is a general, longstanding, and well-established rule

1:04:02

that ignorance of the law is typically not

1:04:04

a defense. It doesn't matter whether you know

1:04:06

that possessing certain items violates federal law. All

1:04:09

that matters is that you knew you possessed those

1:04:11

items. And yet they seem

1:04:14

to be asking for some kind of

1:04:16

blood oath from Brian Fletcher that no

1:04:18

one would be prosecuted for possessing

1:04:20

a bump stock that had been acquired prior

1:04:22

to the change in the ATF's interpretation. Fletcher

1:04:25

parried all that really well, but it was hard

1:04:27

to swallow this energy in light of their ordinary

1:04:29

energy in criminal cases, I thought. Yeah, no,

1:04:31

they were accusing the Biden administration of

1:04:34

potentially moderating the content. Even

1:04:38

though this isn't a Second Amendment case, the case

1:04:40

was argued by Jonathan Mitchell because of course it

1:04:43

was. He's also defending Trump in the Colorado case.

1:04:45

And Justice Kavanaugh tried to goad Mitchell into involving

1:04:47

the Second Amendment, even though the briefs hadn't done

1:04:49

so. And Mitchell actually kind of resisted this in

1:04:52

this exchange. Last question. You

1:04:54

haven't made a Second Amendment or

1:04:56

constitutional avoidance argument. In your view, are

1:04:58

bump stocks covered by the Second Amendment

1:05:00

protected by the Second Amendment? We

1:05:03

didn't argue that because

1:05:05

courts are generally loath to decide constitutional questions

1:05:07

when there's an easy statutory offering. You didn't

1:05:09

throw it in as constitutional avoidance. And I

1:05:11

imagine that was a considered choice. I'm curious

1:05:13

what was behind that. There's nothing that prevents

1:05:15

this court from invoking the constitutional avoidance canon

1:05:17

on the Second Amendment issue because there is

1:05:20

a question at least, whether this falls within

1:05:22

the dangerous and unusual weapons carve out in

1:05:24

Heller. We don't have a position on that

1:05:26

question because we didn't brief it. And also

1:05:28

dangerous and unusual weapons is vague and it's

1:05:30

just not clear to us what the answer

1:05:32

would be. Jonathan

1:05:35

Mitchell, in the aggressiveness of your exhortation

1:05:38

to make Second Amendment arguments, that's really

1:05:40

saying something. Yeah, and it's

1:05:42

saying something important because this is an area

1:05:44

where Justice Kavanaugh is in my view kind

1:05:46

of a wingnut. He is really out there

1:05:48

on the Second Amendment. And so for all

1:05:50

of the media and different people's attempts to

1:05:52

portray him as the moderate on

1:05:55

the court, the median justice part of this

1:05:57

institutionalist center, he is not anywhere near what

1:05:59

anyone. described as the middle of anything

1:06:02

on guns. Yeah. I

1:06:04

think that's totally right. The one thing I think is

1:06:06

possible, and this is how I could

1:06:08

imagine him supplying a fifth vote, is that

1:06:11

you have the four ladies and then

1:06:13

him concurring in the judgment and writing

1:06:15

some mealy-mouthed concurrence that basically says- But how, I

1:06:17

am a father of daughters! And

1:06:20

I would, yeah, but also, so that, and

1:06:22

so like I stand solidarity with my

1:06:24

colleagues. Biggest

1:06:27

feminists on the court. Exactly. And

1:06:30

somehow, because even

1:06:32

when pressed, the challengers didn't suggest

1:06:34

the Second Amendment was in the

1:06:36

mix and should inform our interpretation

1:06:38

of the statute, I agree

1:06:40

that the challenge should be rejected, and yet in a

1:06:42

future case, my mind is wide open. So

1:06:46

it's just, it has the feel of like

1:06:48

a mealy-mouthed Kavanaugh having it both ways, opinion

1:06:50

that I can well imagine emerging from this

1:06:52

case. Go figure. Another maybe high-level

1:06:54

note is that the court seems to have

1:06:56

lost some of the appetite for the consequentialist

1:06:58

energy of Trump versus Anderson. We talked about

1:07:01

this in the context of the immunity argument.

1:07:03

That was also true here. So in the

1:07:05

Colorado case, the court was deeply concerned about

1:07:07

what might happen in the event the court

1:07:09

allowed states to disqualify people under the 14th

1:07:11

Amendment. And all of a sudden,

1:07:13

the justices seemed remarkably uninterested in what it might

1:07:15

mean on the ground if they said that bump

1:07:18

stocks were again, legal. I can't figure out why

1:07:20

they're so concerned some of the time and not

1:07:22

in other cases. Just hard to know. Yeah,

1:07:25

really difficult. And though

1:07:27

it's not clear exactly how the court is going

1:07:29

to rule here, given in particular the

1:07:32

chief and Barrett, I did want to say

1:07:34

something about how this case position suggests this

1:07:36

is vis-a-vis the Republican Party, because we have

1:07:38

heard a lot, or at least I have

1:07:40

heard a lot, about how the court, or

1:07:42

courts generally, were the institution that held firm,

1:07:44

stood on principle, even while the Trump administration

1:07:46

tried to interfere with the peaceful transition of

1:07:49

power. Courts turned away, right? The

1:07:51

efforts to overturn the election via the courts.

1:07:54

And this kind of led to this narrative about how the courts

1:07:57

are maybe the least bad institution, right, when you

1:07:59

have a Republican. controlled Congress and White

1:08:01

House. And this is an example where that

1:08:03

narrative is just way too simplistic because this

1:08:06

court might go further into the abyss than

1:08:08

the Trump administration would, right? Since the Trump

1:08:10

administration concluded bump stocks were machine guns and

1:08:12

could be restricted and now Supreme Court justices,

1:08:15

including Trump nominees, right, could very well say

1:08:17

no, right? They cannot. Yeah, that's a

1:08:19

great point. Okay, so if

1:08:21

that's right, if a majority or

1:08:23

even a subset of the justices say that

1:08:25

bump stocks can't be prohibited in the way

1:08:28

that ATF sought to do that here, how

1:08:30

might they do that, right? Like what could

1:08:32

possibly be their reasoning? And the dispute here

1:08:34

is about the meaning of the words in

1:08:36

the statute and specifically whether

1:08:38

a bump stock automatically fires based on

1:08:40

a single quote function of the trigger.

1:08:42

So the law defines machine gun as,

1:08:44

and I'll quote the statutory language here,

1:08:47

any weapon which shoots is designed to

1:08:49

shoot or can be readily restored to

1:08:51

shoot automatically more than one shot without

1:08:53

manual reloading by a single function of

1:08:56

the trigger, end quote, and it also

1:08:58

includes, quote, a part designed and intended

1:09:00

solely and exclusively for use in converting

1:09:02

a weapon into a machine gun. So

1:09:05

Cargill and Jonathan Mitchell representing Cargill say

1:09:07

that the bump stock automatically renews pressure

1:09:09

on the trigger such that the trigger

1:09:12

fires based on the pressure generated from

1:09:14

the bump stock and that those

1:09:16

firings are multiple functions rather than a

1:09:18

single function and thus don't fall within

1:09:20

the statutory language. And the

1:09:22

government's position is that the bump stock converts

1:09:25

the weapon such that one manual manipulation of

1:09:27

the trigger or pushing the trigger once that's

1:09:29

a single function and it results in a

1:09:31

cycle in which hundreds of bullets are fired

1:09:34

in a minute. No additional manual manipulation of

1:09:36

the trigger is required. So

1:09:38

a bump stock essentially makes it so a

1:09:40

single function of the trigger, manual manipulation, automatically

1:09:42

fires hundreds of bullets. And during

1:09:44

the argument some of the justices and

1:09:46

specifically just the Democratic appointees focused on

1:09:48

what they called an anti-circumvention principle. Basically

1:09:51

the idea that Congress doesn't write laws

1:09:53

to be ineffective or easily worked around.

1:09:55

Congress isn't trying to make laws that give people

1:09:57

ways to nullify what Congress did. And

1:10:00

Justice Kagan pointed out that the statute itself has

1:10:02

some anti-circumvention provisions in it, including the

1:10:04

prohibition on parts that could result in

1:10:06

a weapon that functions like a machine

1:10:08

gun. But the statute doesn't say a

1:10:10

lot of things that you've agreed are

1:10:12

prohibited under the statute. The statute

1:10:14

doesn't, you know, think about buttons. And the

1:10:16

statute doesn't think about switches. And

1:10:19

I have to think that if I

1:10:21

gave you a different hypo that said

1:10:23

it was voice-activated, that you would have

1:10:25

to say, yes, that's a machine gun,

1:10:27

too. And the statute doesn't

1:10:29

think about that. And I guess

1:10:32

what Justice Gorsuch is saying is that

1:10:34

you, in arguing this case, have had to

1:10:36

do something very sensible because otherwise

1:10:39

it would seem, you

1:10:41

know, like, you know, this

1:10:45

statute is loaded with anti-circumvention

1:10:47

devices. The entire way this

1:10:49

statute is written suggests

1:10:51

that Congress was very aware that

1:10:53

there could be small

1:10:56

adjustments of a weapon that could

1:10:59

get around what Congress meant to

1:11:01

prohibit. And

1:11:05

in all kinds of ways, you

1:11:07

are accepting of that and saying,

1:11:09

yes, you can't circumvent it by

1:11:11

that. You can't circumvent it by

1:11:13

non-conventional triggers. You can't

1:11:15

circumvent it by, you know, all

1:11:18

these things that these hypotheticals I've

1:11:20

been giving you. But you can

1:11:22

circumvent it through this one mechanism.

1:11:25

And maybe just a reference to the anti-circumvention principles or

1:11:27

provisions that she might have in mind, you know, when

1:11:29

you were reading the provision, Kate, right, there's a clause

1:11:31

in there that said, or can be readily restored to

1:11:33

shoot, right? And then there's the additional definition that says,

1:11:35

apart, designed, and intended, right, for use in converting a

1:11:38

weapon into a machine gun. So those are just some

1:11:40

of the examples that she might have been referring to.

1:11:43

And the idea that there are these anti-circumvention

1:11:45

provisions in the law, as well as a

1:11:47

general principle, matters because, as Brian Fletcher, the

1:11:49

lawyer arguing for the federal government, said, the

1:11:51

Fifth Circuit's ruling has already led to some

1:11:54

pretty troubling circumvention as far as firearms that

1:11:56

courts are allowing. So let's play that clip here.

1:11:58

I mean, I talked about some of them. But one

1:12:00

of the devices that the Fifth Circuit has held is

1:12:02

permissible, or I'm sorry, a district court in the Fifth

1:12:04

Circuit has held is permissible, and the Fifth Circuit has

1:12:06

declined to stay as something called a forced reset trigger.

1:12:09

And with a forced reset trigger, the ATF

1:12:11

tested it, zip-tied the trigger back, and the

1:12:13

gun shot multiple bullets. What the district court

1:12:15

said is that under my friend's interpretation, there

1:12:17

are multiple functions of the trigger, because

1:12:20

the trigger is wiggling back and forth imperceptibly and

1:12:22

releasing the hammer separately each time, and so it's

1:12:25

not a machine gun. And

1:12:27

I think it's just not reasonable to read the statute

1:12:29

that opens it up to that sort of evasion, and

1:12:31

we're seeing concrete evidence of that evasion in the Fifth

1:12:33

Circuit. And toward the end of his

1:12:35

argument, Mitchell seemed to affirmatively concede that

1:12:37

his interpretation of the law would mean

1:12:40

that a bunch of other anti-circumvention mechanisms

1:12:42

that ATF has long said are prohibited wouldn't be

1:12:44

prohibited, like the Atkins Accelerator,

1:12:46

which has been banned since 2006. That

1:12:49

device relies on a spring and coil mechanism, so

1:12:51

pulling the trigger once generates the firing of multiple

1:12:53

bullets. The bump stock

1:12:55

does this too, but without a spring and a

1:12:57

coil, so a shooter has to continue to apply

1:13:00

forward pressure to make the bullets keep shooting. And

1:13:03

Justice Kagan had some illuminating exchanges with Jonathan

1:13:05

Mitchell about where he was drawing the line,

1:13:07

that is, what things he was saying were

1:13:09

prohibited and what things were not. She suggested

1:13:11

he was almost gerrymandering buck stocks, or at

1:13:13

least didn't have a way of distinguishing them

1:13:15

sensibly from things that he thought were prohibited.

1:13:19

So we're about to play a long series

1:13:21

of hypotheticals with follow-ups that will kind of

1:13:23

illuminate this. If a gun

1:13:25

fires multiple shots at the push of a button

1:13:28

or the flip of a switch and

1:13:32

just keeps firing. Yes, clearly, that's

1:13:34

a machine gun. That's a machine gun. Yes, that

1:13:36

you notice is against camp, essentially. Okay, and

1:13:40

if a gun does the same thing, except now it's

1:13:42

the push of two buttons. Yeah,

1:13:45

I thought you say also on page 45 of

1:13:47

your brief that a

1:13:50

push-operated machine gun that requires the shooter

1:13:52

to push and hold two buttons. That

1:13:54

that would also qualify, because the

1:13:56

two buttons together are acting

1:13:58

as the trigger, and that's why we're here. scenario. Okay.

1:14:01

Then you conceded the two buttons

1:14:04

is a machine gun. So now I'm

1:14:06

saying instead of pushing two buttons you

1:14:08

push one button and you hold the trigger. It's

1:14:11

going to depend on what how we define trigger

1:14:13

and that's the answer to that will not always

1:14:15

be clear. The question is can you extend the

1:14:17

whole United States against camp to this particular situation?

1:14:19

I think you don't

1:14:23

quite know what the answer to that is.

1:14:25

If you have an answer let me know because

1:14:28

the difference between pushing two buttons

1:14:30

for me and pushing one button

1:14:33

and holding the trigger is not

1:14:35

self-evident. The pushing

1:14:37

a button and holding the trigger and you need to do both. Say,

1:14:40

boy I still have thought I was being

1:14:42

pretty clear here. Yeah. You push two buttons.

1:14:45

Okay so now I guess I want to

1:14:47

know what's the

1:14:49

difference between pushing a button

1:14:52

and holding the trigger and

1:14:54

pushing the barrel and holding the trigger. You've

1:14:56

just described a bump stop. So

1:14:58

Mitchell's answer was that none of these

1:15:00

devices actually modified the trigger but it's

1:15:02

not clear why he had settled on

1:15:04

that definition of trigger or this necessary

1:15:06

condition of modifying the trigger. Like neither

1:15:08

of those things were in the statute.

1:15:10

It wasn't clear why he was defining

1:15:12

trigger a function of the trigger as

1:15:14

one push-pull that is like pressure on

1:15:16

the trigger. When as Justice Kagan pointed

1:15:18

out you can modify firearms to fire

1:15:20

in different ways and through different mechanisms.

1:15:23

Some of which Mitchell said would be

1:15:25

covered by this law. Like if you

1:15:27

just put two buttons on right that

1:15:29

would mean like a single button right

1:15:31

a single push or pull of the

1:15:33

trigger wouldn't be sufficient such that that

1:15:35

modifies the trigger. Here too even though

1:15:37

pressure on the trigger is still required

1:15:40

to fire manual manipulation is not and

1:15:42

that is a very plausible definition of

1:15:44

a single function of the trigger again

1:15:46

given the overall context and other provisions

1:15:48

in the statute. Justice Kagan

1:15:50

was so good it seemed like

1:15:53

Mitchell got frustrated with her. and

1:16:00

then Sam Alito felt the need

1:16:02

to intervene. And Mr. Mitchell, this

1:16:04

conversation is totally confusing, because I

1:16:07

thought that your argument

1:16:09

depended on what

1:16:12

the trigger, that the function

1:16:14

of the trigger was what

1:16:16

the trigger does mechanically inside

1:16:18

the weapon. We also had

1:16:20

some, can we call them illuminating

1:16:22

exchanges during this argument about statutory interpretation? I

1:16:24

don't know what to call them. So

1:16:27

here, whatever this is, let's play it. And

1:16:29

Justice Alito, with a leading question to Jonathan

1:16:31

Mitchell. In the field

1:16:33

of statutory interpretation, Justice

1:16:35

Scalia's bétenoir was the Church of

1:16:37

the Holy Trinity case where he

1:16:40

thought that the

1:16:43

literal language of the statute had

1:16:45

to control, even though it's pretty

1:16:48

hard to think that Congress actually

1:16:50

meant that to apply in

1:16:52

certain situations. As you see this case, is

1:16:55

this another Church of the Holy

1:16:57

Trinity case? I would say it's quite as egregious

1:16:59

as Church of the Holy Trinity, but the arguments

1:17:01

the government's making are certainly in the spirit of

1:17:03

Holy Trinity, the borrower phrase that was used from

1:17:06

the Holy Trinity opinion. And I

1:17:08

don't think a textualist judge can accept

1:17:10

the rationale that's being offered by the

1:17:12

US government. And they are in their

1:17:15

brief, especially making purposeful arguments along

1:17:17

the lines of what we saw in Church of the Holy Trinity. Thank

1:17:20

you. Maybe just to explain this, though,

1:17:22

Holy Trinity is a reference to a decision,

1:17:24

and it is a bad word, a bad

1:17:27

phrase among textualists, an emblematic of anti-textualist reasoning.

1:17:29

Because in that case, the Supreme Court said,

1:17:31

oh, the text of the law covers this,

1:17:33

but we court aren't going to read the

1:17:36

law to do that because it would violate

1:17:38

the spirit of the law, what Congress would

1:17:40

have attended. And it's like a bad word

1:17:42

for textualists. Perhaps more

1:17:44

relevant for today is that Holy Trinity was

1:17:46

an instance where the Supreme Court relied on

1:17:49

religious doctrine and religion to interpret the law.

1:17:51

Literally, his opinion says,

1:17:53

this is a Christian nation. And that was

1:17:55

essentially the basis on which the court rendered

1:17:57

its decision. Sorry, go ahead.

1:18:00

Yeah, no, it's unclear if Sam Alito would say that

1:18:02

part is so bad. But also

1:18:04

the idea that Sam Alito is like

1:18:06

the standard bearer and police-er of what

1:18:08

textualism is, is just laughable. This is

1:18:11

a guy who not infrequently mocks textualism

1:18:13

and the rules of grammar and canons

1:18:15

of construction, right, that textualists use that

1:18:17

they say is important to interpreting statutes.

1:18:19

He likened it to an enigma machine

1:18:21

and whatnot. So it's just like, try

1:18:24

to show some consistency, sir.

1:18:26

I know. I think that's another example

1:18:29

of some shadowboxing with Justice Scalia, I thought. And

1:18:31

that exchange between Alito and Mitchell led

1:18:33

to this response by Elena Kagan in

1:18:35

which she seemed to suggest that unlike

1:18:37

others on the court, maybe, including Sam,

1:18:40

she actually is a good textualist. Mr.

1:18:42

Mitchell, I'll tell you, I view myself

1:18:45

as a good textualist. I think

1:18:47

that that's the way we should think

1:18:49

about statutes. It's by reading them. But

1:18:52

textualism is not inconsistent with

1:18:54

common sense. Like at some point,

1:18:56

you have to apply a little bit

1:18:58

of common sense to the way you

1:19:01

read a statute and understand that what

1:19:03

this statute comprehends is

1:19:05

a weapon that fires a

1:19:07

multitude of shots with

1:19:10

a single human action, whether it's

1:19:13

a continuous pressure on a

1:19:16

conventional machine gun holding the

1:19:18

trigger or a continuous

1:19:20

pressure on one

1:19:22

of these devices on the barrel. I

1:19:26

can't understand how anybody

1:19:28

could think that those two things should

1:19:30

be treated differently. Unlike

1:19:32

that guy. Right, exactly. I

1:19:36

think we're going to spare our listeners having

1:19:38

to suffer through Neil Gorsuch

1:19:40

talking about function as an intransitive

1:19:42

verb. You can't function a trigger.

1:19:46

But if you're really feeling masochistic some night,

1:19:48

maybe just listen to the argument if you

1:19:50

haven't. But I just can't do it. I

1:19:52

can't do it. No. Yeah.

1:19:55

But anyway, there was some real kind of peak,

1:19:57

ridiculous Gorsuch performative text.

1:20:00

about grammar and transitivity and I

1:20:03

don't think it got a lot of traction with

1:20:05

his colleagues. I'm hopeful that KBJ had some very

1:20:07

good responses as well, but there

1:20:09

was like a lot of really disturbing

1:20:11

parsing of the kind of status

1:20:13

of this word function that really had a like

1:20:15

losing the forest for the trees feel to it.

1:20:19

Anyway, so I don't know big picture

1:20:21

recap. You think Leah that this you're pessimistic

1:20:23

you think that I think there's a greater than

1:20:25

50% chance that the

1:20:27

court, you know says Machine guns

1:20:30

doesn't include bump stocks. Yeah, I don't I

1:20:32

don't know that it's entirely clear But it

1:20:34

was just hard to read two of the

1:20:36

justices. Yeah to my mind bear it in

1:20:38

the teeth Yeah, I'm feeling more optimistic, but

1:20:41

I certainly don't think it's a slam dunk

1:20:43

by any means Let's recap

1:20:45

one more case the court heard last week and

1:20:47

that is cantaro versus Bank of America a case

1:20:49

about whether the National Bank Act or NBA

1:20:52

preempts in New York State law requiring mortgage

1:20:54

lenders to pay a minimum interest rate on

1:20:56

funds held in mortgage escrow accounts when the

1:20:58

State law is applied to national banks. It

1:21:01

sounds really dry But honestly, there's a tiny bit of

1:21:03

like McCulloch versus Maryland energy to the case There was

1:21:05

even a question about whether McCulloch was rightly decided So

1:21:08

the case and the argument were more interesting than I

1:21:10

had expected going in. Okay, so briefly

1:21:12

background We'll see if our listeners agree that this is

1:21:14

actually interesting But under the

1:21:16

statute the NBA state consumer financial law

1:21:18

is preempted right meaning the federal law

1:21:20

controls Only if as

1:21:22

relevant here the state law prevents or

1:21:24

significantly interferes with the exercise by the

1:21:26

National Bank of its powers The

1:21:28

Second Circuit said laws are preempted based on

1:21:31

whether they purport to control the exercise of

1:21:33

national bank powers Not how much

1:21:35

a lot impacts a national bank and

1:21:37

then elsewhere the NBA says at section

1:21:39

25 B's requirement that a preemption Determination

1:21:42

assess the impact of a

1:21:44

particular state consumer financial law So

1:21:46

John Taylor Jonathan Taylor from Gupta Westler did

1:21:48

a great job explaining to the court Why

1:21:51

the Second Circuit's test new seemingly departs from

1:21:53

the one that is outlined by the NBA

1:21:55

He was also very clear in explaining how

1:21:57

the test should work why it's administrable the

1:21:59

federal government was supporting him, and

1:22:02

they were arguing against Lisa Blatt.

1:22:04

Regular listeners of the pod are familiar

1:22:06

with Lisa's unique argument style, which I

1:22:08

will share with the rest of you

1:22:10

here. It's not in your

1:22:12

brief, and it's different, and if I

1:22:14

think it's different from the lower court opinion, what are we

1:22:17

supposed to do? And then you stick with our brief. It's

1:22:20

not in your brief. Stick with

1:22:23

our brief. Don't, don't, you didn't hear anything I said.

1:22:25

Well, your brief, your brief,

1:22:27

the problem is- I've heard that. I

1:22:31

mean, the problem is that your brief doesn't explain

1:22:33

fair lending much. Listeners

1:22:36

know I have a real soft spot for

1:22:38

Lisa talking shit to the justices. You're basically

1:22:40

yelling at Neil Gorsuch. You didn't hear a

1:22:42

thing I said, which is something I also

1:22:44

often want to say to Neil Gorsuch, and

1:22:46

she just does it to his face. So,

1:22:49

respect. It's not clear everyone on the court loves her

1:22:51

style, although I actually thought that she seemed to be

1:22:54

going over pretty well in this argument that it's not

1:22:56

always the case. I thought Taylor was great. He's had

1:22:58

a couple of great arguments this year. So,

1:23:01

I don't know. I think that on the

1:23:03

merits, like he really was persuasive, and

1:23:07

yet Lisa's winning streak is tough. So,

1:23:10

I don't know if she's an

1:23:12

unbroken- No, she lost Turkey. She did. That's

1:23:14

what Turkey lost. Yeah, not totally unbroken. So, we

1:23:16

will see. But it was a pretty entertaining argument,

1:23:18

which I did not expect going in. Let's

1:23:21

end with some court culture, and we want

1:23:23

to start with an update out of Alabama.

1:23:25

So, we have talked about the decision out

1:23:27

of the Alabama Supreme Court, finding that cryogenically

1:23:30

frozen embryos are children for purposes of the

1:23:32

state's wrongful death of a minor act. Following

1:23:34

that decision, a number of clinics

1:23:37

in Alabama announced that they were pausing

1:23:39

IVF services out of an understandable fear

1:23:41

of liability flowing from this decision. And

1:23:44

in the wake of that announcement, the Alabama

1:23:46

legislature passed a law that provides legal immunity

1:23:48

for death or damage to an embryo

1:23:51

to any individual or entity when providing

1:23:53

or receiving goods or services related to

1:23:55

IVF. So, essentially a liability shield for

1:23:57

IVF providers. So, that's the statute. And

1:24:00

that may have the effect of restoring IVF

1:24:02

access in Alabama, and if so, that's great.

1:24:04

But I think it very much remains to

1:24:06

be seen whether the Alabama Supreme Court lets

1:24:08

that law stand under the state

1:24:11

or maybe even federal constitution, given some

1:24:13

of the constitutionally infected reasoning that we

1:24:15

talked about in the Alabama state case,

1:24:17

because a statute can't do anything to

1:24:19

change what the Alabama constitution requires if,

1:24:21

in fact, the justices think

1:24:23

the constitution itself requires treating embryos as

1:24:25

persons. We noted last

1:24:28

time that Alabama, as Beyonce said,

1:24:31

ain't Texas. Well, Texas stepped up

1:24:33

because we have another front in the battle

1:24:35

for reproductive freedom, and this one is out

1:24:37

of the state of Texas. So a district

1:24:40

court in Texas, which is how these sentences

1:24:42

always begin, a district court in Texas invalidated

1:24:44

the Pregnant Workers Fairness Act, along with the

1:24:46

rest of the Consolidated Appropriations Act, concluding that

1:24:49

the law was passed in violation of the

1:24:51

quorum clause of the constitution

1:24:53

because Congress authorized proxy voting. We

1:24:55

should note that the constitution actually says

1:24:57

the House, quote, may determine the rules of

1:24:59

its proceedings, end quote, but no matter. You

1:25:02

know, the judge who invalidated

1:25:05

the law is Judge Hendricks, who

1:25:07

was nominated by Donald Trump at

1:25:10

Ringwist on Twitter, had a great thread

1:25:12

pointing out the various errors in parliamentary

1:25:14

procedure in the opinion, like misidentifying the

1:25:16

abbreviation HR as House resolution rather than

1:25:19

House of Representatives or misidentifying who signed

1:25:21

the bill on the House and whatnot.

1:25:23

So, yeah, I mean, yay,

1:25:25

law. This decision really had it all. It

1:25:27

was like the Pregnant Workers Fairness Act

1:25:29

was, you know, it was added to

1:25:31

this larger appropriations bill in December of

1:25:33

2022, six months after Dobbs, a

1:25:35

sort of unexpected bipartisan coalition came together and

1:25:37

was like, well, at least if everyone is

1:25:40

going to have to carry pregnancies to term,

1:25:42

maybe we should at least provide people some

1:25:44

protections against being fired or discriminated against for

1:25:46

being pregnant. So, you know, that it was

1:25:48

an actually important, good piece of legislation. And

1:25:50

of course, Texas, like

1:25:52

the most pro-life of states, does not want pregnant

1:25:54

workers to be able to go to work free

1:25:57

from discrimination. And so that's the base. basis

1:26:00

for the standing that the court found that Texas

1:26:02

had to challenge this appropriations law. I think there

1:26:04

was also a challenge to an immigration provision of

1:26:06

the larger law that this was attached to. So

1:26:09

there's just like the sadism, like

1:26:12

the misogyny and also the

1:26:14

incompetence of the opinion, right? It can't

1:26:16

even get basic matters of not at

1:26:18

all parliamentary procedure yet. And it's 120

1:26:20

pages or something to boot. So there

1:26:22

was that. But thankfully, there was actually

1:26:24

some sanity out of Texas, which is

1:26:27

a disrecorder opinion in joined Texas's extreme

1:26:29

anti-immigration law, SB4, that attempts to impose

1:26:31

some penalties under state criminal law for

1:26:33

violations of federal law, even though in

1:26:36

Arizona versus United States, the Supreme Court

1:26:38

had said that some immigration law provisions

1:26:40

are highly reticulated schemes that preempt any

1:26:42

state involvement whatsoever. So here,

1:26:45

the Texas law also purports to authorize state

1:26:47

courts to order people to be removed, even

1:26:49

though Arizona versus United States

1:26:51

and federal law more generally make clear

1:26:53

the federal immigration law created a

1:26:55

system in which federal immigration officers

1:26:57

would primarily make removal of determinations.

1:27:00

And state law specifically bars state courts from considering

1:27:02

the fact that there might be pending or

1:27:04

potential federal immigration removal proceedings against

1:27:06

someone. So that case is

1:27:09

now likely to go up to the Fifth Circuit. Obviously,

1:27:12

that's how all happy stories begin their

1:27:14

endings. No, no way it's going to

1:27:16

end well, because we know

1:27:18

the Fifth Circuit is pretty sure that Texas law and

1:27:20

not federal law is supreme when it comes to

1:27:22

immigration and the border. And

1:27:24

the Fifth Circuit had to get on that

1:27:27

BS early. The New York Times reported

1:27:29

that late Saturday night, the Fifth Circuit entered

1:27:31

an administrative stay of the district court

1:27:33

decision in joining the Texas law. But

1:27:35

the Court of Appeals also apparently indicated that

1:27:37

the state would expire this Saturday unless

1:27:39

the Supreme Court intervenes before then. We're going

1:27:42

off the New York Times reporting about

1:27:44

this because at the time we're finalizing this

1:27:46

episode, the Fifth Circuit hasn't actually released

1:27:48

its order. But it appears that the

1:27:50

Court of Appeals made it such that Texas's

1:27:52

anti-immigration law, a law that destabilizes and

1:27:54

challenges the existing framework for immigration law, will go

1:27:56

into effect this weekend unless the Supreme Court is

1:27:59

in the office. stops it. Siskotis,

1:28:01

your move. All right, listeners,

1:28:03

you can join the Crooked staff on March 7th

1:28:05

for a State of the Union group thread. This

1:28:07

time around, you can watch along on the Pod

1:28:09

Save America YouTube channel or our Friends of the

1:28:11

Pod Discord, where you'll be able

1:28:13

to submit questions to Tommy Vitor, Ben Rhodes,

1:28:15

Aaron Ryan, and others in the main chat.

1:28:18

If that sounds like your kind of watch

1:28:20

party, head to crooked.com/friends to learn more and

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sign up. And the Crooked store's

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is a Crooked Media production hosted and executive produced

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