Leigh Beadon: 0:07

Hello, and welcome to our first and maybe only mini episode or minisode of Ctrl-Alt-Speech. I'm not the voice you normally hear. My name is Leigh Beadon and I'm the producer of Ctrl-Alt-Speech and the Techdirt podcast. And as some of you probably know, we weren't planning on having an episode this week, both Mike and Ben, your hosts for Ctrl-Alt-Speech are on vacation, but after weeks of waiting, the Supreme court shows the most inconvenient time possible to release it's much awaited NetChoice ruling, which has some major implications for speech online. Uh, as you know, we've been following that for a long time. So we dragged Mike briefly off of the streets of his vacation, uh, to come in and, walk us through some of that news a little bit, just cause we didn't want to leave you all waiting for a week or two, uh, before we could talk about it. So Mike, uh, how's vacation going?

Mike Masnick: 0:59

Well, uh, it is, uh, less fun when I suddenly have to run into a hotel room and record, but, uh, we figured it was, worth it to do that, but, uh, we'll try and keep this, short and sweet so I can get back to vacationing.

Leigh Beadon: 1:15

Yeah, absolutely. So, uh, to that end, why don't you start out? Just give us a quick explanation. What happened? Uh, what came out in this ruling? What are the immediate effects of it going to be? And you know, what are your immediate thoughts on it?

Mike Masnick: 1:28

Yeah, sure. So it's, it's actually two decisions in one. There was an assumption that would probably happen, though they could have decided each case separately because. The Florida case and the Texas case were actually heard as separate cases on the same day, involving some of the same lawyers and everything, but they did combine it into a single ruling. And the ruling sends the case back to the lower courts is the, is the bottom line. And on that point, it's actually a nine zero decision. All nine justices decided to send the case back. The reasoning why is mostly agreed upon, but that's about it. More or less, there was, An issue that came up only at the oral arguments and hadn't really been discussed before that as to the sort of posture of the case and whether or not the net choice and CCIA, who are the two trade groups that brought both cases, um, were challenging this as a, a facial challenge, basically saying the entire law is unconstitutional or as applied, basically, basically, basically, You know, if this law is applied in these cases, that that use of the law would be unconstitutional. And throughout the cases, it was everybody, you know, sort of pictured it as being a facial challenge to both the Texas and Florida content moderation laws. Um, you know, both those laws were designed to effectively limit the ability of. Uh, social media sites to moderate certain types of political content. Uh, and the challenge was, you know, is the entire law unconstitutional? And so during the oral arguments, a bunch of the justices started asking these questions about whether or not it makes sense to, to be a facial challenge. And there are elements of when you challenge a law, On its face and say the entire law is unconstitutional. You sort of have to look at everything that the law applies to, whereas almost all of the discussion in the lower courts and all of the briefing was very specific to how the law applied to social media feeds, you know, Facebook feed, YouTube feed, Instagram feed, those kinds of things. Um, and it was, it was a little weird during the oral arguments. Like you heard justices talking about things like Etsy and Uber and whether or not the law applied to them in any way. And what did, what did all of that mean? And so that's kind of where they came down, where they said, you know, this case is being positioned as a facial challenge, but it wasn't litigated. As if it was a facial challenge, there wasn't an attempt to go through the law and to say, you know, here is, you know, all the ways in which the law can apply and none of them are constitutional under the First Amendment, which would be the way that you would normally challenge the law if you're doing a facial challenge. And so the. The general decision was that because it wasn't litigated that way and it should have been, we have to send this all the way back down, go through this process all over again, uh, as a, you know, as a facial challenge and going through all the steps that, that makes sense there. But from that, there was a lot more in the decision, which is that the majority decision, which was written by Elena Kagan, um, and was signed on to by effectively six of the justices, um, though Justice Jackson did not sign on to a few parts of it. Then went on much further and said, you know, now that this case is going back to the lower courts, uh, we have some notes

Leigh Beadon: 5:04

Right, right,

Mike Masnick: 5:06

we have some notes about how the first amendment works and about how the first amendment applies to social media and internet websites. And let's just be clear. That the first amendment absolutely does apply. And websites have a first amendment right to editorial discretion in terms of how they display feeds and what content is shown and the other cases that people have relied on in, in other cases or in, you know, in, in these two cases, the States relied on, on these other laws, these other cases like Pruneyard and Rumsfeld v. Thayer. Uh, those cases don't really apply here. Uh, and Kagan is pretty direct that the 5th Circuit ruling, which upheld The Texas law, uh, was crazy and made no sense. And, and she's pretty explicit. And again, five, possibly six, I mean, really six of the justices signed on to most of that five of the justices signed on to much of it. Um, and sort of said, okay, if we're going to go through this again, let's get a few things straight about how the first amendment works and the fact that it does in fact apply to, uh, to internet companies. And so it's, it's a, it's a weird ruling. It could have been clearer. I mean, if we had gotten all of that. As, as, you know, not as a side issue, but as the main ruling, the, the applicable part of it, um, that would have been even stronger, but this, you know, this is giving pretty clear instruction to the lower courts not to go off and into crazy land like, like the fifth circuit did. Yeah.

Leigh Beadon: 6:46

Gallis on TechDirt, uh, you know, I've read your, uh, piece on TechDirt that you also stepped away from your vacation to write and, uh, and hers today as well. Um, you know, she argues that It's sort of strange framing and that arguably that dicta in the ruling, all of that additional stuff is really the stuff that answers the question the court said they were taking on when they took on the case. And so it has created a sort of strange situation where you were also saying to me earlier that, you know, Everyone's trying to claim victory over this. Like it's allowing, it's allowing the people who have been smacked down to maybe pretend they weren't. Is that, is that kind of what's happening

Mike Masnick: 7:22

Yeah. Yeah. I mean, the most obvious of that is Florida's attorney general came out and declared victory, uh, because the, you know, technically the Supreme court rejected the 11th circuits ruling and sent it back to start over again. But the instructions were pretty clear. And in fact, you know, in the, in the part that was, you know, chastising the fifth circuit, they make clear like the 11th circuit, you know, The only problem with the 11th Circuit ruling, effectively, was that, that it, it, you know, didn't focus on the fact that this was a facial challenge and making sure that all the elements necessary for a facial challenge were there. Um, there are some other things, too, but, you know, the, you know, the, Because it was a 9 0 ruling on that main point, all of the other opinions in there, there are multiple four other opinions, um, you know, are sort of addressing different elements, even if they sort of appear as dissents, they're not, they're technically concurrences. And there's two, there's one from Justice Thomas alone, which I would classify as just kind of whining,

Leigh Beadon: 8:28

Okay.

Mike Masnick: 8:29

whining that the court is even, you know, doing this, like we should never have said anything more than just the basic part and then going through like what Justice Thomas believes is a history lesson of all the times the court has gone too far and has been overbroad in its reading of things. Um, And then there's the Justice Alito one, which was signed onto by both Thomas and Gorsuch, um, that, you know, just emphasizes, like, we agree on the point that this should be sent back because there's a facial challenge and should be heard in a different way, but everything else is dicta and should be ignored. And it basically says that pretty explicitly. And then Alito goes off on a whole bunch of other nonsense and tangents, which more or less suggest that, you know, You know, he, he would probably side with, with the fifth circuit and is almost saying like the fifth circuit could just reissue their, you know, nutty decision, uh, and just say, you know, make sure the elements regarding a facial challenge is included and it would be fine. But, you know, now we know that beyond those three, it doesn't look like they're, they're, you know, that fifth circuit type of ruling has the votes, um, to, to actually, you know, vote. You have, have the Supreme Court rule that way.

Leigh Beadon: 9:50

Right. But does this still sort of potentially give those courts ammunition if they still want to be difficult about this to like say they don't have to follow that? I mean, I mean, what. What happens now? I think everyone's saying this is going to make its way back before the court eventually, whether through these cases or through others. So like what, you know, what happens now in the wake of this ruling?

Mike Masnick: 10:11

Yeah. Partially that's unknown. So, you know, because, because they threw out the lower court rulings and the lower court rulings were all preliminary injunctions, blocking those laws from going into effect, technically those injunctions have just gone away, which probably means that NetChoice and CCIA have to immediately run back to the lower courts and file for another preliminary injunction. And then we go through this whole process all over again. And we'll see, you know, in both Texas and Florida, the district courts did side against the states and with Net Choice and CCIA, I think, assuming that, you know, they can write up a version of the case that makes sense. You know, shows the elements for a facial challenge. It's hopefully likely that the lower courts will do that again. Then it bounces up to the appeals courts and we go through this whole same process again. And, you know, there's a decent likelihood that even though there is all this. technically dicta, um, in the case that the Fifth Circuit will still try to make their case and, and basically do the culture war thing and take, take notes from Alito and Thomas and make this argument. But it doesn't look like they would then have the support of the, you know, of a majority on the court when the case actually made it, made it back. But, you know, we'll see, so it's, you know, I don't know if it's next year or perhaps more likely two years from now that the Supreme Court is basically going to be hearing Net Choice 2, I think is the way they would probably call it, and we'll kind of have to go through this whole dance again and see what happens at that point.

Leigh Beadon: 11:48

Yeah. but certainly there's reason to have, I guess, more confidence than before that the Supreme Court will see the issues actually at play here.

Mike Masnick: 11:56

Yes. So, so, you know, the, the, the, the good parts of this are that, you know, six out of the nine justices really did understand the, the, appear to understand the, the basics of the first amendment and how it applies to the internet and the limits on what states can do to block it. Yeah. Uh, you know, block sites from, from moderating content in the way that they see fit, they did seem to recognize that websites as private entities have first amendment rights for editorial discretion. Uh, they did appear to, to understand all of those things. The fact that the first amendment applies to the internet. You know, this is important. The fact

Leigh Beadon: 12:37

they drew distinctions from like Pruneyard and those other cases that were invoked and sort of highlighted why that didn't apply here

Mike Masnick: 12:43

Exactly. Exactly. And Pruneyard, you know, Pruneyard is this sort of nutty case that, you know, a lot of people have relied on in a, in a faulty way, just because they're desperately looking for a case that, that effectively says that states can compel, uh, entities to host speech that they don't want. In Pruneyard, that was about a shopping mall. And it was a question about like, you know, people handing out pamphlets and things like that. And that ruling was always kind of a weird one where basically they said, you know, the, The mall can't restrict people based on viewpoint and and prevent them from handing out pamphlets. Um, but it was a very very narrow ruling when it came out and it was very specific to the situation in pruneyard And there were follow up cases that sort of tried to expand pruneyard And in fact really ended up doing the opposite of that and limiting the facts specifically to like Pruneyard shopping mall. Like I don't, I don't think there, I think even other shopping malls might not even have the same result as Pruneyard had, there were some very, very specific parts to it. And here, you know, in the majority opinion, they make clear like Pruneyard is distinguished because. Pruneyard's business was a shopping mall. The business of Pruneyard, the shopping mall was not speech or expression in any way, whereas social media is about speech and expression. And that's what makes the big difference here. And so, you know, it really makes it clear and has really good. You know, clear language that people will cite that says that, you know, uh, Pruneyard doesn't apply to social media. And I think that's actually really important because so many of the people who are really looking at trying to pass these kinds of laws kept pointing to Pruneyard as their, their main, uh, you know, the main proof that you could force social media companies not to moderate certain content.

Leigh Beadon: 14:30

Yeah, I mean, I've, you know, I follow these things less closely than you do, but I've seen it invoked countless times by people, you know, just as an example that in theory, this can be done, sort of, you know, um, yeah, uh, speaking of that, like, powerful language in the ruling and the impact on other cases and laws, like, do you see that having an immediate impact? Are we going to start seeing the language from the dicta in this ruling, like, turn up in other cases and things soon, you

Mike Masnick: 14:55

probably. I mean, the, you know, the annoying part is, you know, right now, like every state is trying to pass various kinds of laws, you know, not as direct as the Florida and Texas laws, but we're seeing it in all the age verification laws, um, in the, uh, age appropriate design codes, some of the privacy laws, you know, uh, there are some, you know, um, Um, A few other laws as well that sort of all touch on this in terms of like, you know, how algorithmic feeds can present content. Um, and so all of that stuff is coming up. And, you know, if this ruling had been much clearer, it might have made clear that most or all of those laws are probably unconstitutional. Whereas here, it doesn't. You know, there is language that is now going to appear in those cases, and, and as they're being heard, and I'm sure we'll see filings in some of the cases that are challenging these laws, pointing to language in those laws as sort of an emphasis and an exclamation point. The, uh, legislatures and the lawyers representing the states who are pushing for those laws are going to point to the fact that it's dicta, and they're going to say, you know, that none of that applies, none of that matters, this is different. You know, the, the thing that will most often come up is that only applies to. You know, moderated feeds and we're not doing that. We're talking about something else entirely. You know, I don't think that's true. I think they're sort of misrepresenting it. Um, but it doesn't give a clear thing that will knock out these laws. Uh, but, but the language from this is certainly going to show up in, in a lot of the court hearings and the filings in, in all those other cases, I'm sure.

Leigh Beadon: 16:32

Yeah. And then what about the other aspect of this, you know, sending it back to the courts to make sure it got a ruling on the whole law on its face? Is that going to impact the path of some of these other laws? Are like other circuits and other courts going to try to avoid making that same mistake and make sure that they start evaluating these laws as a whole and their constitutionality from the get go?

Mike Masnick: 16:52

Yeah, I'm sure. I do wonder. I don't know what that will mean for some of the other challenges if you know, because it's net choice itself that the trade group is the one challenging a lot of these laws, not all of them, but a lot of them. And I do wonder if that will make net choice rethink and see if they can, you know, I don't know where, I mean, there's so many different states and cases and so many different things. I don't know procedurally where they are in terms of what they can do to sort of You know, amend the original complaint or or what, um, some of them that might be possible. Some of them, I'm guessing it's not. Um, but, you know, I do think, yeah, just the fact that they're going to have to be explicit that they're doing a facial challenge and then make sure that all the elements that are necessary to do a facial challenge are going to have to be have to be shown, um, will make it interesting. And I imagine some of the cases are going to, you know, going to shift in terms of what their focus is right now, based on this. Um, but none of none of. You know, what came out in that ruling, I think really changes the underlying factors that might just change the sort of litigation posture of how these cases go.

Leigh Beadon: 17:54

makes sense. Okay. Well, I think we've kept you away from your vacation long enough. I'm glad we had time to give our listeners this little update. Um, for everyone listening, as I said, we will not be back this Friday with a full episode, but we will be back next week. Uh, Ben is going to be on with a guest host that week. And, uh, for those of you listening on the Techdirt podcast feed, where we are cross posting this little episode, cause we know it's of interest to our Techdirt listeners as well. Uh, come join us over on the Ctrl-Alt-Speech podcast as well. Subscribe wherever you listen to your podcast. Same goes for Ctrl-Alt-Speech listeners who aren't yet Techdirt listeners and, uh, yeah, we'll be back with a full episode as soon as we can. Thanks everyone for listening.

Mike Masnick: 18:34

Yep. Thanks.

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