1127 Connecticut Avenue, NW
Washington, DC 20036
Public and Private Power: Preserving Freedom or Preventing Harm?November 11 — 13, 2021
The 2021 National Lawyers Convention took place Thursday, November 11 through Saturday, November 13 at the Mayflower Hotel in Washington, DC. Over three days, the Convention featured four Showcase Sessions discussing the Convention Theme of "Public and Private Power: Preserving Freedom or Preventing Harm?", sixteen breakout sessions sponsored by the Practice Groups, the Thirteenth Annual Rosenkranz Debate, the Twentieth Annual Barbara K. Olson Memorial Lecture, and the 2021 Antonin Scalia Memorial Dinner.
2021 Antonin Scalia Memorial Dinner
Hon. Tom Cotton
United States Senate,
50 Massachusetts Avenue NE
Washington, DC 20002
Thursday, November 11, 2021
Reception - 6:00 p.m.
Dinner - 7:00 p.m.
(ticketed event) BLACK TIE OPTIONAL
Twentieth Annual Barbara K. Olson Memorial Lecture
The Mayflower Hotel
1127 Connecticut Avenue NW
Friday, November 12, 2021
Thirteenth Annual Rosenkranz Debate
RESOLVED: Concentrated corporate power is a greater threat to individual freedom than government power
The Mayflower Hotel
1127 Connecticut Avenue NW
Saturday, November 13, 2021
Hon. Robert H. Bork Memorial Lecture
The Job of Attorney General—A Historical Perspective
The Mayflower Hotel
1127 Connecticut Avenue NW
Saturday, November 13, 2021
The Mayflower Hotel
The Mayflower Hotel
Showcase Sessions Discussing the Convention Theme:
"Public and Private Power: Preserving Freedom or Preventing Harm?"
Practice Group Breakout Sessions
Reserve early! Washington, DC hotels are becoming booked very quickly for the fall convention season. To reserve overnight accommodations for the Convention, please contact The Mayflower directly:
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036
Reservations Toll Free: 877-212-5752
Reservations Local Phone: 202-347-3000
Reservation Link: https://book.passkey.com/event/50205953/owner/1261/home
Cut off Date: October 18, unless rooms sell out sooner.
Please note that we are subject to local and federal government restrictions, which could include capacity limitations; therefore, register early to secure your spot.
All events are now sold out. You may add yourself to the waitlists for the Antonin Scalia Memorial Dinner and the Barbara K. Olson Memorial Lecture & Reception by selecting the Waitlist ticket options. If a spot opens up, you will be contacted and confirmed before any payment is processed.
|Non-Member||SOLD OUT $250 per day|
|Active Member||SOLD OUT $200 per day|
|Student Non-Member||SOLD OUT $60 per day|
|Student Active Member||SOLD OUT $50 per day|
**Individual day purchase includes that day’s sessions, CLE, and lunch. It does not include social events. CLE materials will be available electronically. A hardcopy of materials can be provided upon request after the Convention, make sure to request CLE Materials in hardcopy form on the CLE sign-in form during the Convention.
|Antonin Scalia Memorial Dinner
|SOLD OUT $250|
|Antonin Scalia Memorial Dinner
|SOLD OUT $200|
|Barbara K. Olson Memorial Lecture & Reception
|SOLD OUT $150|
|Barbara K. Olson Memorial Lecture & Reception
|SOLD OUT $100|
***The Antonin Scalia Memorial Dinner and the Barbara K. Olson Memorial Lecture & Reception are now sold out. You may add yourself to the waitlist for either event. If a spot opens up, you will be contacted and confirmed before any payment is processed.
CANCELLATION FEE OF $100 AFTER MONDAY, NOVEMBER 1.
NO REFUNDS WILL BE GIVEN AFTER MONDAY, NOVEMBER 8.
2021 National Lawyers Convention
2021 National Lawyers Convention
|Topics:||Corporations, Securities & Antitrust • Culture • Politics|
What role should publicly traded corporations play in democratic politics?
Corporate resources are increasingly being used to advance social justice policy goals. This corporate engagement includes advocacy for what’s presented as the “corporate perspective” on divisive social questions. It also includes the use of economic leverage to influence public opinion, affect government policy, and induce private agreements to policy choices that have not been adopted through the political process.
To some, this is a positive development: it is all to the good for corporations to advance a just cause. Their public leadership and their market power can help bring the country and the world along. To others, this is an abuse and confusion of power. The goals of the “social justice” and “woke” movements are among the most hotly contested questions of American politics and culture, and they should be resolved through democratic processes without corporations putting a thumb on the scale.
We will explore these questions both as matters of principle and matters of law.
As a matter of principle, should corporations have unfettered discretion to influence any sphere of American life? Is such discretion good for the democratic process, and is it good for individual liberty? Is the libertarian perspective -- that private actors should be largely able to do what they want, and if they overstep, market competition will fill the gap – adequate to this dynamic? Is there any limiting principle to corporations using economic power to influence politics?
As a matter of law, are corporations permitted to use whatever levers are available to them to influence matters of politics? Is corporate leadership permitted to do so in publicly traded companies? Should corporate endorsement or support of a policy position or candidate be considered a reportable lobbying expense or campaign contribution and, if so, how should it be valued? What existing legal frameworks might apply to these questions? How does Citizens United fit into this picture?
2021 National Lawyers Convention
|Topics:||Federalism • Litigation|
In a 1987 article entitled Why Hold Elections?, Professor Michael McConnell noted a trend that had been emerging since the 1970s: the use of consent decrees to settle federal lawsuits against state and local governments. These decrees are entered as judgements enforceable by contempt, but without full litigation. Nonetheless, these decrees often contain hundreds of requirements that dictate the policies, budgets, and personnel of local government agencies for years or even decades. Professor McConnell thus warned: "To the extent that consent decrees insulate today's policy decisions from review and modification by tomorrow's political processes, they violate the democratic structure of government. They should be repudiated before they become a common part of the legal landscape."
In 2018, then-Attorney General Jeff Sessions issued a memo noting that consent decrees "raise sensitive federalism concerns" and announcing a new set of policies governing (and limiting) DOJ’s use of consent decrees.
In April 2021, Attorney General Garland repudiated the Sessions memo, stating that the "Department will return to the traditional process that allows the heads of litigating components to approve most settlement agreements, consent decrees, and the use of monitors in cases involving state and local governmental entities."
This panel will explore the important topic of federal court consent decrees to settle claims against state and local governments. Panelists will explore the history of such decrees and the arguments for and against their use. Panelists will also discuss the dueling approaches to DOJ’s use of such decrees, as outlined in the Sessions and Garland memos.
2021 National Lawyers Convention
2021 National Lawyers Convention
|Topics:||Culture • Politics • Separation of Powers|
Political polarization is a great problem of our time. This panel would consider the separation of powers deformation that is a factor in polarization. Executive branch administrative decisions tend to be more extreme than legislative solutions, particularly when, as is usually the case, the houses of Congress and the President are divided among the parties. Thus, Congress’s delegation of policy decisions to the executive branch results in extreme regulations that can shift radically between administrations, creating government by whiplash. The panel would consider whether institutional restorations, like the curbing of delegation and Chevron, might help in restoring a constitution of compromise.
2021 National Lawyers Convention
|Topics:||Corporations, Securities & Antitrust|
The Federalist Society’s In-House Counsel Working Group presents a panel discussion featuring top in-house attorneys at publicly-traded and privately-owned companies, who will shed light on the current state of corporate law and governance, reflect on challenges they face in day-to-day practice, and present an overview of the in-house legal world to newcomers and experienced lawyers alike.
2021 National Lawyers Convention
|Topics:||Culture • Intellectual Property|
A perennial debate about intellectual property and culture is how intellectual property laws enhance or restrict the ability of people to contribute to and build a culture. The Supreme Court has described copyright as "the engine of free expression," but criticisms frequently arise when intellectual property law prevents people from using the work of others to express themselves. In the trademark context, recent Supreme Court decisions struck down the prohibition of federal trademark registration for immoral, scandalous, and disparaging marks as a violation of First Amendment speech rights. Some argue that the Court’s reasoning should further be applied to strike down most federal Trademark Dilution claims, which allow brand owners to sue those who use their trademarks in ways that blur or tarnish the trademark. The debate regarding copyright fair use also continues to rage on, pitting the rights of original creators against the ability of appropriation artists and others to use those original works.
This panel will consider these longstanding controversies in light of recent developments.
2021 National Lawyers Convention
|Topics:||Corporations, Securities & Antitrust|
The past year has seen an unprecedented number of political and legislative suggestions for altering nearly every aspect of U.S. antitrust law. If adopted, these proposals may redefine the American economy and consumer marketplace. Hear from leading legislators, antitrust luminaries and policy makers about the potential upcoming antitrust revolution.
2021 National Lawyers Convention
|Topics:||Culture • Labor & Employment Law|
The average United States workplace has changed in many ways over the past twenty years. The development of modern internet, computers, and smartphones shifted corporate America fully into the 21st century. The changes, however, have not been only technological in nature. New HR practices can now be found in more and more companies, both large and small. In the same way the iPhone modernized how U.S. workers communicate, new progressive HR policies seek to modify several aspects of workplace interaction. Our panel of experts will discuss the school of thought and fundamental reasoning behind these policies, as well whether these changes are helpful or harmful, or something in between.
2021 National Lawyers Convention
|Topics:||Administrative Law & Regulation|
In addition to formal rulemaking and case-by-case adjudication and enforcement, federal agencies have long employed a myriad of mechanisms to influence and punish private behavior. Their civil administrative investigations are unbounded by the procedural constraints of the Administrative Procedure Act, traditional transparency protections, or the redress afforded by timely judicial review. Civil administrative investigations can be not only onerous but also financially catastrophic, especially when the targets are small businesses and individuals. The abuse of agency investigative authority raises significant constitutional and statutory questions. Agencies have compelled information from investigative targets without the warrant the Fourth Amendment would require, and then converted the investigation from civil to criminal. Federal agencies have been imposing draconian conditions to end administrative investigations, like imposing "gag" orders that prohibit the target from disclosing the terms of the settlement, and requiring the target to make payments to agency-designated third parties in lieu of paying the statutorily prescribed fine into the Federal Treasury. These conditions are imposed without affording the investigative target the opportunity to meaningfully challenge the agency’s underlying authority to act or the tactics by which it acts.
This panel will explore the under-researched civil investigative and related activities of federal agencies and engage on their underlying legal authority to so act.
2021 National Lawyers Convention
|Topics:||Criminal Law & Procedure|
For many who align themselves with fundamental principles of our constitutional system, the progressive agenda seems to be driven not only by an unreasonable cry to defund police, but a broader assault on the fundamental American precept "ordered liberty" through the rule of law. Meanwhile, those who align themselves with another agenda see these principles as a shield for abuses of police authority, particularly abuses aimed at certain communities, driven by perceived lack of accountability on the part of beat cops and administrators alike.
This panel will review the Constitutional underpinnings of "ordered liberty" at the state and federal level. It will discuss and consider the criminal justice system's role in both securing liberty and protecting civil rights, including as carried out by police, prosecutors, defense counsel and judges.
2021 National Lawyers Convention
Fulton v. City of Philadelphia was a victory for religious liberty, but it is unclear how broad its implications will be for other cases and what the opinions in Fulton portend for the future of Employment Division v. Smith. The Court’s majority opinion relied on provisions of Philadelphia’s foster care agency contracting process, but the majority also potentially reworked Smith’s understanding of when government regulation is "generally applicable." Meanwhile, several justices indicated a willingness to revisit Smith altogether, though what a post-Smith free exercise jurisprudence would look like remains unclear. This panel will explore these and other questions raised by Fulton and the future of religious free exercise.
2021 National Lawyers Convention
2021 National Lawyers Convention
2021 National Lawyers Convention
2021 National Lawyers Convention
2021 National Lawyers Convention
|Topics:||Corporations, Securities & Antitrust • Free Speech & Election Law|
Online platforms host a growing share of public discussion and debate. As private businesses, they have been free to develop and implement their own content moderation policies, free of First Amendment constraints. But as the amount of speech hosted on a few platforms has grown, the resulting concentration of control over that speech has sparked questions about the power of private companies to stifle lawful expression.
As Justice Clarence Thomas recently noted, the Court soon will need to consider how existing legal doctrines apply to these highly concentrated, privately owned, digital platforms. Part of the solution, he suggests, might lie with common law doctrines like common carrier or public accommodation – doctrines that might permit regulation that limits the right of private platforms to exclude.
But what of the First Amendment interests of the platforms themselves? Do these corporations have a protected expressive interest in declining to carry speech which is lawful but which they find objectionable? How should we think about the digital platform model – are they more like a communications network distributing information, more like publishers that actively curate content and associate themselves with hosted expression, or do they toggle back and forth?
Finally, should the concentration of private power over speech change how we think about public and private threats to free expression? Private businesses are presumptively free to set terms and conditions for the use of their own property. Have digital platforms assumed a degree of control over public discourse, sufficient to alter that presumption? Is some form of regulation appropriate to protect against private threats to liberty? Or is government intrusion into private decision-making still the greater threat?
Dean Reuter: Good morning, everyone. Let’s get started if we could. Welcome back. Thank you. I’m Dean Reuter, still the Senior Vice President and General Counsel of The Federalist Society. Welcome back. It’s great to see you again. I said to somebody last night, or yesterday, this Federalist Society thing, it’s like a great, big family reunion. Everywhere you turn, somebody you know, but these people you actually like.
In terms of housekeeping -- I always have the housekeeping duties, so I apologize for that. But I’m reminding folks about the D.C. protocols. I’ve heard some grumblings about wearing the masks. It might be too late for a pro tip on making mask wearing a little less unbearable, but I soaked my mask last night in some pretty high end scotch. And I’m rather enjoying wearing it this morning. Of course that’s not true. That’s just a ridiculous joke. I’ve been soaking my mask in scotch since April. Really, though, please don’t soak your mask in anything, especially if you’re watching from home and you’re not an adult.
In terms of CLE, I’ve covered this before, but I’ll mention it again. You need to begin your day, if you’re seeking CLE, with a QR code. Hopefully, everybody knows what that means. If you haven’t done it, there’s a QR code outside the door and in registration, and some volunteers nearby should have the code as well. But make sure you do that. Otherwise, you’ll have a problem with your bar association.
So welcome back. It was a great evening -- great day yesterday, great evening yesterday. I have to say I asked Senator Cotton for a nerdy law and policy speech, and he delivered a barn burning roast where nearly everybody got their moment on the spit. So I thought it was highly entertaining, but we’ve got a great day lined up today as well. And much later today, we’ll close with the 20th Anniversary Olson Lecture with Ted Olson himself. And I remember, very powerfully, a very poignant inaugural lecture very clearly, mere weeks after the 9/11 terrorist attacks 20 years ago. So I do look forward to hearing what Ted has to say today.
Before that, though, we have a full day of programming, much of it on public versus private power, classroom, curricula and the law, cancel culture in financial services, but also broadband, free speech, global human rights and a special panel of judges talking about originalism. That’s a panel that in-house, as we built it, we referred to as “A Bunch of Judges,” no disrespect to the judges -- and a fireside chat with the Vivek Ramaswamy. But we begin this morning with a showcase panel on “Private Control over Public Discussion,” which of course reminds me of a story.
Now, many of you I think know that I wrote a nonfiction World War II book, and at this point my publisher contractually requires me to say the title of the book, which is The Hidden Nazi, which is now available in paperback. And as I like to say people don’t buy as many books as they used to, but even if you only buy five or six books all year long it should probably be five or six copies of The Hidden Nazi. Anyhow, it is a page-turning thriller that describes our hunt for a particularly despicable Nazi that nobody’s ever heard about. And I wrote it in first person, which is an odd presentation for a nonfiction book.
So I talk about in the book our research, our hunt for this evil man who had escaped justice and any historical reckoning -- had done a deal, faked his own suicide and done a deal with the Americans and survived the war. So I’m in the book. My wife Lou Anne is in the book. My kids, my father, my whole family is in the book as I spin out the tale. And when I was previewing this narrative for friends and colleagues as I’m writing the book, long before it was published, everyone would say, Dean, that’s an adventure tale that ought to be a movie or an HBO series or a Netflix series, which I never tried to dispute.
So later when I’m having dinner with my wife and our friends, I’d tease my wife. I’d say, you know, if we make a movie out of The Hidden Nazi, I’ll probably get Ryan Reynolds to play me because we look about the same and we’re the same age and the same build. And my wife heard me tell that joke one too many times, so at our next group of friends when we’re meeting I say, "I’ll have Ryan Reynolds play me." And my wife said, "If you have Ryan Reynolds play you, I’ll play myself." So admittedly the story’s not directly on point, but it does say a little bit about who has a control in a discussion at any given moment.
So I’m now very pleased to introduce Judge Barbara Lagoa, who will moderate our showcase panel on “Private Control Over Public Discussion.” She is and has been since late 2019 a judge on the Eleventh Circuit Court of Appeals. Before that she served with distinction on the Florida Supreme Court, having spent several years on Florida’s other lesser courts. She brings a unique perspective of a state trial court judge, a state appellate court judge, a state supreme court justice, and now a federal appellate court judge. Judge Lagoa, the floor is yours.
Hon. Barbara Lagoa: Thank you so much, Dean. Thank you for the introduction. It is truly a pleasure to be here today, in person, not wearing a mask to moderate this panel where we’re going to be discussing “Private Control Over Public Discourse” with a distinguished panel of experts.
The Supreme Court has called the internet the modern public square. And that’s certainly true. But unlike public squares in the countries past, this modern public square in the form of digital platforms, whether social media platforms like Twitter or Facebook or search engines like Google, provide avenues for and access to historically unprecedented amounts of speech and information. And unlike public squares in this country’s past, access to this modern public square is concentrated in the hands of few parties. For example, while Google controls 90 percent of the market share for search engines, it can suppress content by down listing a search result or by steering users away from certain content by manually altering autocomplete results. And Facebook and Twitter can also narrow a user’s access to information and content through similar means.
Indeed, Twitter under the terms of its own service agreement can remove any person from its platform, including the president of the United States, at any time for any or for no reason while allowing other public actors, such as Nicolas Maduro, Daniel Ortega, or Miguel Diaz-Canel, unlimited access. Is that an exercise of individual liberty by the digital platform which is a private party, or do these digital platforms wield an enormous amount of power that needs to be regulated? And if they do require regulation, what kind of regulation? And what existing legal doctrine should be applied to these privately owned digital platforms that constitute the modern public square?
You’ll hear from some of our panelists today that the answer might lie with common law doctrines, like common carrier or public accommodation – doctrines that permit regulation that limit the private platform’s right to exclude. I’m looking forward to a robust debate from these speakers on these issues. Each speaker will have 10 minutes for an opening remark, and I’m going to hold you to it. And then we’re going to follow it with a moderated discussion, and then I promise that we will open up the floor for 15 or 20 minutes for questions from the audience.
Before we hear from the speakers, let me introduce them. I know that they don’t need any introduction, but I’m going to introduce them in the order that they will be speaking. I’m going to start first with Professor Eugene Volokh. He is the Gary T. Schwartz Distinguished Professor of Law at UCLA School of Law. He is an expert in First Amendment law. He is the founder and co-author of the Volokh Conspiracy—I’m sure many of you read that—the Libertarian and conservative blog. He is widely published, and he recently published an article titled “Treating Social Media Platforms like Common Carriers,” which is relevant to our discussion today and which I highly recommend.
Our next speaker will be Professor Randy Barnett. He is the Patrick Hotung Professor of Constitutional Law at Georgetown University Law Center. Notably among his many accomplishments, he is also the director of the Georgetown Center for Constitution. He has published 12 books, countless journal articles and has a forthcoming -- he has a book that he co-authored with Evan Bernick titled The Original Meaning of the Fourth Amendment: It’s Letter and Spirit. And I believe he has a book signing afterwards.
The next presenter we have is Professor Adam Candeub. He is a professor of law and Director of the Intellectual Property, Information, and Communications Law Program at Michigan State University. Prior to this position he served as Deputy Assistant Secretary of Commerce for Telecommunications and Information at the Commerce Department, as well as Deputy Associate Attorney General at the Department of Justice during the Trump administration. He is also the writer of an article published last year in the Yale Journal of Law and Technology which is entitled, “Bargaining for Free Speech: Common Carriage Network Neutrality and Section 230,” which is a seminal piece of authorship that he wrote, and I highly recommend reading that as well.
And our last speaker today is Professor Jane Bambauer. She is a professor of law at the University of Arizona College of Law. She specializes in the emerging and highly important area of technology law. She’s written numerous journal articles, has testified before Congress, and her research assesses the social cost and benefits of big data and questions the wisdoms of many well-intentioned privacy laws. Her articles have appeared in the Stanford Law Review, the Michigan Law Review, the California Law Review, and the Journal of Empirical Legal Studies.
Please let’s welcome the speakers and give them a round of applause. So without further ado, Eugene.
Prof. Eugene Volokh: All right.
Hon. Barbara Lagoa: 10 minutes.
Prof. Eugene Volokh: You got it. Is there going to be a red light?
Hon. Barbara Lagoa: Oh, yes.
Prof. Eugene Volokh: Okay. So I think I need to be speaking here because I’ve got the PowerPoints.
Hon. Barbara Lagoa: 10 to 12:00.
Prof. Eugene Volokh: 10 to 12:00. You’ve got it. So it’s a great pleasure to be at this conference as always and talking about this subject. I want to stress there’s a question mark at the end of my title, and it’s an important piece of punctuation here, I think, because I don’t know what the right answer is here. I think it’s an important question. I spent 80-plus pages talking about it. I’m still not sure what the right answer is, but I want to kind of air one possible approach to these social media debates just to see whether it might make sense.
This is one of those areas where I think there’s been a lot of assumption that, of course, the platforms have the right -- not just a right under current law but the constitutional right to choose what to include and what to exclude. I think that assumption is in some measure and in some measure perhaps not, and I’d love to see what people have to say about it, both my colleagues and the academy, people in this room -- lawyers, legislatures and such. So I want to start with Justice Stevens' Citizens United dissent
Now, I’m with the majority on Citizens United. I imagine most people in the audience are. My sense is most people in the legal academy and newspaper commenters, and such are with the dissent. But I think what everyone might say about the majority and the dissent in Citizens United is I think they both had very good points. They both made some very good arguments. The question is how those arguments fit within the doctrine and how you weight the value of each. So I thought that Justice Stevens’ dissenting argument is worth bringing up a bit because what it was all about is the concern with economic power being translated into political power.
Now, in any free market economy some element of that is going to be present. And I don’t think Justice Stevens was sort of radically opposed to that, nor do I think the campaign reformers are categorically opposed to it. Nonetheless, there is, I think, real reason to worry in a democracy, even if you are a free-market sympathizer like I am -- reason to worry about entities that are powerful—immensely economically powerful—to the level that their yearly revenue exceeds the GNP of many nations, that that power may be unduly leveraged into political influence. And that’s what Justice Stevens was talking about.
A legislature might conclude that unregulated spending by corporations about candidates will give them unfair influence and distort public debate. The opinions of real people may be marginalized, and if we want to have competition among actors in the political arena be truly competition among ideas, there needs to be some regulation to prevent that marginalization. Corporate domination of electioneering can also generate the impression that corporations dominate our democracy. And politicians who fear a corporation’s power here may be cowed into silence about that corporation or perhaps about those things the corporation just doesn’t want them to talk about.
Now, again, I think the majority got this right because I think none of this justifies restricting the speech of corporations. Among other things, it turns out that the speech of corporations is actually a very small portion, even post-Citizens United, of discourse about candidates, maybe 5, 10 percent. We don’t know for sure. So I think that Justice Stevens’ argument rightly didn’t carry the day there. But he was talking about this is an argument for restricting corporations’ speech.
But I think it applies even more to questions about regulating corporate restricting in individual speech. That on one side is this concern about excessive economic power, and on the other side are the free speech rights of corporations and of the people who own and run those corporations. I do think the free speech rights prevail. But when on one side is this interest in -- or this concern about excess economic -- or use of economic power to influence politics and the other side is the corporation’s ability to restrict speech, not to engage in their own speech but to restrict speech, the balance it seems to me may well be different.
So here’s one way of thinking about it. Let’s think of platforms as places where people can speak using other’s property. So let’s imagine a spectrum. On one end of the spectrum may be newspapers and magazines. Newspapers and magazines often carry the speech of outsiders, letters to the editor, ads, op eds, syndicated columns, and such. And they have not just the right to include materials; they have the right to exclude materials. That’s been recognized, as we’ll see shortly, under the First Amendment that that’s part of their editorial discretion. And I think quite rightly so in part because newspapers and magazines solve the problem of information overload.
The newspaper and magazine is valuable at least as much for what it excludes as for what it includes. There are all of these stories out there and all of these topics important or not. The stories may be well written or not. The stories may be accurate or not. They may be intelligent or not. And we rely on newspapers and magazines to filter that for us. And I think it would be a real mistake to try to regulate newspapers and magazines for fairness or evenhandedness.
Bookstores are another item that historically has been seen on that side of the spectrum. They don’t actually create new works. They don’t edit particular works, but they do select works, which is why there are such things as free market book stores or feminist book stores or Christian book stores, which is also, I think, pretty useful as a means of dealing with information overload – that if you have a bookstore you trust you might go there and expect that the books that they’ll display for you for you to browse will be interesting books, well written books, books worth reading.
And I think, actually -- and actually I wrote a white paper on this wearing my lawyer hat for Google, but I would also endorse this as an academic. Google as provider of search also serves that function. Whatever you may want search to be, you don’t want it to be content neutral. Imagine a content neutral search engine. I don’t think you even want it viewpoint neutral. If you ask it how old the earth is, let’s say, you probably want the viewpoint that is sort of shared by the scientific community rather than whatever somebody may have search engine optimized to try to put up top.
Likewise, I think with regard to platforms recommending pages you might like -- that is actually very close, I think, to what newspapers or bookstores in particular do.
And the interesting question is where you put Facebook, YouTube, and Twitter managing conversations, so comments, say, by somebody on my page or on my tweet. But then when you get down to the bottom of that, you see situations where we don’t expect entities to select and edit. In fact, we forbid them from doing that. The Postal Service is an example. The Postal Service, at least since the 1940s, it’s been understood isn’t supposed to say oh, this is good speech; this is bad speech -- perhaps setting aside some examples of actually outright unprotected speech. No, the Post Office is a government-run entity, but we take the same view with regard to a phone company.
Imagine a phone company says, we happen to know, not from listening in but from public information, that this phone number is being used as a recruiting number by the Klan or by Antifa or by the communists or by whoever else; and we’re just appalled, and our other subscribers are appalled by our property being used for these conversations. So we’re just going to cancel their phone number. That’s not something they can do. They are common carriers. They’re not supposed to leverage their power, whether it’s monopoly or monopoly-ish power as with landlines, or non-monopoly power as with a famously competitive cellphone companies. They’re not supposed to leverage that economic power into political power, power over the discourse. Likewise UPS and FedEx, if they say, we don’t want to deliver from your bookstore, that’s not something they’re entitled to do.
So one question is where -- should we assimilate Facebook, YouTube, and Twitter as providers of hosting for users to reach willing viewers. So somebody sets up a Twitter account, and people go there because they want to see it. Somebody sets up a Facebook page or puts up a YouTube video and people go there because they want to see it. Should we treat them more like newspapers and magazines that have editorial discretion which we value? Or should we treat them more like phone companies or UPS or FedEx that are supposed to provide common carriage to all?
So that’s the policy thing. I want to just quickly, because I have just a couple of minutes left, talk briefly about the constitutional question, although one can talk a lot more about it. So I want to also start with another quote. This is also from a dissent by Justice Breyer, but on this point I think the majority would have agreed. It’s from the A.I.D v. AOSI, the follow-up case. “Requiring someone to hose another person’s speech is often a perfectly legitimate thing for the Government to do.”
So I’ve often heard the argument, well, obviously, it would be an unconstitutional speech compulsion to require a property owner to host other speech. I don’t think that’s right. I mean, the phone companies aren’t like that. That is to say the phone companies are required to host speech, but are not seen as having a First Amendment right to say no, we’re going to cancel someone’s phone line. So again here you can see a spectrum. Newspapers can’t be required to publish replies to criticism of candidates because, again, they have constitutionally protected editorial discretion. A parade organizer can’t be required to include floats it dislikes in its parade because when people go to see a parade, the parade is seen as the aggregate of all the messages. People often watch it beginning to end or at least some point to another point.
On the other hand a shopping mall may be required to allow leafleteers and signature gatherers, including leafleteers who distribute offensive material or material that urges a boycott of stores in that very shopping mall. That’s an interesting question whether that’s a good rule. Remember that question mark at the end of my title. Maybe shopping malls shouldn’t be regulated this way, but the Supreme Court has said that if a state wants to impose this rule, that’s constitutional.
Cable system may be required broadcast channels, and, of course, in Rumsfeld v. FAIR, a university may be required to allow military recruiters. And by the way, not just as a condition of funding, which is what happened in Rumsfeld v. FAIR, but just as a categorical rule, which is something that the Court told us in Rumsfeld v. FAIR would be permissible. And the distinction that is offered in some of these cases is why, for example, is a cable system different from a parade? “The programming offered on various channels by a cable network consists of individual unrelated segments that happen to be transmitted together for individual selection by members of the audience.” I think that’s very much descriptive of what Facebook or Twitter or YouTube is like with respect to the millions or billions of items available there.
So I’m going to close with just kind of one point. So I think as a constitutional matter at least requiring common carriage just as a hosting function is consistent with the First Amendment. The big question mark for me is as to the policy matter. It's hard to imagine regulation that doesn’t have the opportunity to make things worse. And this is an area where in fact regulating things might make things worse. I’m far from certain that trying to impose this common carriage obligation is a good policy idea. But I do think it’s probably constitutional if done right, and it’s something that we ought to be thinking about.
Hon. Barbara Lagoa: Thank you. I am very impressed. You had 15 seconds left.
Prof. Eugene Volokh: I’m going to save that for rebuttal, Your Honor.
Hon. Barbara Lagoa: Randy, you want to take his 15 seconds?
Prof. Randy E. Barnett: I’ll take his 15 seconds. I’ll need it. Until the 1950s, when African Americans traveled in the South, they were so restricted in the hotels and restaurants that would serve them that they bought “The Green Book,” a guide to hotels and other services who would do business with them. This was, at best, an imperfect, private solution to a serious public problem.
Through a combination of state laws, private prejudice, and private violence, combined with a lack of government protection, a vital national privilege of African American citizens was being abridged. It was the privilege known as the right to travel. Tragically, this abridgement had been made possible by decisions of the U.S. Supreme Court. To combat the organized white supremacy that arose in the wake of slavery’s abolition, Republicans in the 39th Congress enacted the Fourteenth Amendment. Then, in 1875 they used the enforcement power of Section 5 to prohibit just this type of discrimination in nongovernment owned places of public accommodation.
But eight years later in the Civil Rights cases, the Supreme Court held that the Civil Rights law to be unconstitutional on the grounds that it barred discrimination by nongovernmental actors. The regime of organized white supremacy lasted for 90 years until the Civil Rights Act of 1964 in which Congress once again barred discrimination in places of public accommodations. It was this law and the subsequent regime of federal enforcement that finally broke the back of Jim Crow. Because of its precedent in the civil rights cases, however, the Court upheld the 1964 Act based on Congress’ commerce power, rather than on its Section 5 power, to ensure the equal protection of the privileges or immunities of citizenship.
The Civil Rights Act of 1964 passed with a higher percentage of Republican support in both the Senate and House than Democrat. Without that support, the Act would have died. Yet some Republicans, most prominently Senator Barry Goldwater, objected to its constitutionality because it barred discrimination by privately owned business. Republicans have been tarred by this association ever since. In 1875, of course, it was Democrats, not Republicans, who raised this constitutional objection. Understanding why Republicans thought such a measure was constitutional is useful today.
In our new book, The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit, on sale after this program and to be a in a signing ceremony, Evan Bernick and I spent two chapters explaining the concept of Republican citizenship embodied in Section 1 of the Fourteenth Amendment. To understand the privileges of Republican citizenship, we must distinguish between two binaries: the public-private binary and the government-nongovernment binary. It is commonly assumed that these two binaries are identical. By this I mean there exists just two categories: public-governmental on the one hand and private-nongovernmental on the other.
But once we distinguish them as two distinct binaries, however, we can see how the concept of national citizenship that was adopted and reshaped by the newly formed Republican Party could see not just two but three categories. In between the categories of public-governmental and private-nongovernmental is the category of public-nongovernmental. Such a category can be located in the common law governing inns and common carriers.
After the Fourteenth Amendment, it sometimes went by the label “businesses affected with a public interest.” Unlike purely private, nongovernmental actors, such businesses could be subject to price controls and to a nondiscrimination norm.
The boundaries of this middle category, whatever it be called, were not always easy to discern, and there are different ways to conceptualize and justify it. Sometimes these privately owned companies receive public charters. Sometimes they exercise the power of eminent domain. Sometimes they could be viewed as a monopoly. Sometimes, while not individually a monopoly, through a mixture of common prejudice reinforced by private violence, they would have the practical power of a single monopoly.
This is what African Americans confronted with they traveled through the South before 1964, a phalanx of nongovernmental public service providers refusing to sell them the essential means to travel within a whole swath of the United States. Many of these providers were motivated by bigotry. Some were just obeying the law, and still others were coerced by the threat of violence by private actors who were given free reign by local law enforcement officials.
Whatever their motivations, this regime of public governmental and nongovernmental actors was able to restrict the means by which African Americans could exercise a fundamental privilege of national citizenship, which is the right to travel.
In describing this history, I do not mean to be equating the current situation of today’s political dissenters from progressive orthodoxy with that of African Americans during Jim Crow. Still, the conceptual categories that explain why the Republicans believed that their 1875 civil rights bill was constitutional may be useful to appreciate the challenge posed today by privately owned social media companies.
Let us begin with the nature of the right that is at issue. As we explained in our book, the privileges or immunities of citizens -- or citizens of the United States are the civil rights that every person receives from the government to secure the pre-existing natural rights they enjoyed in the state of nature. In the words of the Declaration, it is to secure these rights that one leaves the state of nature to enter a civil society. In return for their allegiance, the government owes every citizen a duty to protect these fundamental rights.
This duty is expressly enshrined in the Equal Protection Clause or what we call the "equal protection of the laws clause." In sum, civil rights are the government guarantees of our natural rights, along with any other rights that are necessary to protect these rights, such as, for example, the right of trial by jury, which Madison said was, “as essential to secure the liberty of the people as any one of the pre-existing rights of nature.” The right to travel was considered to be a privilege or immunity of national citizenship in 1868 and is so still considered today.
The freedom of speech is another well-recognized privilege of U.S. citizenship that was protected by the Privileges or Immunities Clause from being abridged by state laws. The freedom of speech expressed in the First Amendment protects the very same natural right we possess against our fellow citizens. Contrary to the civil rights cases, the equal protection of the laws clause imposes a duty on state governments to protect this fundamental right from being infringed not only by states but also by non-state actors. When states failed to provide this protection, Congress can exercise its Section 5 powers to fill that gap, which brings us to privately owned social media platforms.
Just as privately owned restaurants and hotels are public accommodations reached via government owned highways, privately owned social media platforms might be considered public accommodations -- and I say might be considered public accommodations -- that are accessed through the internet. Just as no one is compelled to open a restaurant or hotel to the public, no one is compelled to create a public forum for the expression of speech. It is to their credit that privately owned companies like Facebook and Twitter have successfully created a communications platform that because it is so user friendly has come to be as essential to exercising the fundamental privileges of freedom of speech as privately owned restaurants and hotels are to the privilege of traveling.
By virtue of their marked success, they might be viewed as businesses affected with a public interest or public accommodations akin to restaurants and hotels. They might be seen as being in that middle category of nongovernmental public institutions. Such institutions are typically regulated by the states. For example, the District of Columbia’s public accommodations law makes it unlawful “to deny directly or indirectly any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages and accommodations of any place of public accommodation wholly or partially for the discriminatory reason based on the actual or perceived political affiliation of any individual.”
All it would take for a state to extend this nondiscrimination prohibition to social media platforms would be to define a social media platform that is open to the general public as a place of public accommodation and then add political viewpoint to the list of improper bases for exclusion. Recognizing the right to express oneself on political issues as a privilege of national citizenship protected by the First and Fourteenth Amendment is easy. More challenging is whether to define social media platforms as places of public accommodation.
For example, the Civil Rights Act of 1875 distinguished between public inns and private boarding houses, which were owner-occupied. Like boardinghouses, truly private networks -- for example the Georgetown listserv or The Federalist Society listservs -- are not places of public accommodation. But the universal nature of social media companies seems to place them on the public accommodation side of the line.
Now, instead of thinking of them as nongovernmental public accommodations, however, perhaps it would be clarifying to label them nongovernmental public forums. These are forums that unlike newspapers or radio programs are open to members of the general public to express their views. How may such nongovernmental public fora properly be regulated? The label suggests that First Amendment doctrine now governing public forums provided by government might provide doctrinal guideposts. An online, public, nongovernmental forum can certainly limit the subject matter of discussion. Subject matter regulations is a form of content regulation, but a permissible one. A forum devoted to rock climbing can exclude posts on rock music. Such a forum would in short be considered a limited public, nongovernmental forum.
What about other forms of speech, say, speech that harasses another member of the forum? I suggest that to the extent a private company has created a forum for the public to communicate their ideas, such a company is limited to barring speech that the Supreme Court has found to be unprotected from government restriction. If a governmentally provided public forum cannot restrict such speech, than neither can a nongovernmentally provided public forum. Categories of unprotected speech include fraud, incitement to imminent lawlessness, personal threats of violence, or other unlawful harassment, obscenity, and child pornography. Just as government can ban these forms of speech, so to can nongovernment public forums.
In this sense, we can say that the First Amendment does sometimes apply to private parties. We often hear the First Amendment doesn’t apply to private parties. In this sense perhaps First Amendment doctrine should apply to private parties. Via the Equal Protection Clause of the Fourteenth Amendment, it applies to those private parties who have created a public forum. A power to protect the freedom to speak in nongovernmental public forums does not entail a power to compel people to speak. Facebook is free to express its own corporate opinions and cannot be compelled to endorse any particular idea.
But unlike other companies, Facebook provides members of the public with a space or forum in which to express their views, which is exactly what draws the public in to view the advertising from which Facebook derives much of its income. If this qualifies Facebook as a common carrier, a place of public accommodation or a nongovernmental public forum, then it may not discriminate against speakers on the basis of their political identity or viewpoint. It may only prohibit unprotected expression, provided it does so evenhandedly. Conservatives and Libertarians rightly oppose much governmental restrictions on how private companies do business.
They also rightly oppose governments regulating the speech that can be conveyed on social media platforms, which the left is now pushing for in Congress. But conservatives and Libertarians also rightly love the First Amendment that protects the natural right of freedom of speech. Viewing nongovernmental social media platforms as places of public accommodation or as public forums does not justify the government suppressing constitutionally protected speech on those platforms. It is Orwellian to equate protecting the freedom of speech of individuals who wish to speak on social media platforms with the suppression of speech on the grounds that both are regulations of speech.
To conclude—I’m going to conclude—I have not reached any final opinion. Like Eugene, I have not reached any final opinion on whether to regulate social media companies as public accommodations or public forums. But I do think we need to stop thinking in terms of the binaries of the public-private and government-nongovernmental. The antislavery constitutionalists and the Republicans who wrote the Fourteenth Amendment recognized the existence in civil society of three categories, not two. So too do our current civil rights laws that are deemed to be sacrosanct and so too should Libertarians and conservatives. Thank you.
Hon. Barbara Lagoa: Thank you, Randy. Next we have Adam.
Prof. Adam Candeub: Professor Barnett’s perceptive and I’m sure to be highly influential analysis of Republican citizenship as well as his discussion of the Supreme Court’s opinion in the civil rights cases moved me to recall the opinions only dissent, which I’m sure most of you in the audience will remember. It’s Justice Harlan’s, one of the great dissents in American legal history.
In it, Harlan argued that the federal government in fact did have the power under the Civil Rights Act of 1875 to mandate nondiscriminatory treatment, to quote the opinion, “in accommodations and facilities of inns, public conveyances, and places of public amusement.” As I understand Professor Barnett, he argues that equality merely within the governmental sphere is not enough for full citizenship in society and full participation in liberal democracy. Rather, citizens must have the chance to engage fully in the public sphere as well. I think Harlan’s dissent has clear parallels to Professor Barnett’s position.
To quote Harlan, “The one underlying purpose of congressional legislation has been to enable the black race to take the rank of mere citizen and to secure the enjoyment of privileges belonging under law to them as component part of the people for whose welfare and happiness government is ordained. Today it is the colored race which is denied by corporations and individuals wielding public authority rights fundamental to their freedom and citizenship. At some future time it may be some other race.” And the Harlan dissent offers important insights to the panel’s topic, private control over public discussion.
First, the dissent recognizes the corporations and individuals wielding public authority can interfere with citizens and rights fundamental in their freedom and citizenship, and that’s precisely our question. Whether Facebook, Googles and Twitters -- Facebook is one of the supporters of today’s event? Is that correct? Okay. Let’s just focus on Google and Twitter.
So that’s precisely our question, whether Google and Twitter’s censoring of the Hunter Biden tapes, the bizarre de-platforming and censoring of information critical to public health authorities, their targeting of competitive firms with different ideological outlook, such as Parlor, constitutes, to use Harlan’s phrase, corporations and individuals wielding public authority to interfere with rights fundamental to freedom and citizenship.
Second, the dissent has direct application to the regulation of communications technology. One of Harlan’s dissent’s main arguments for the Civil Rights Act of 1875’s constitutionality is that the federal government has the power to regulate common carriers in other industries affected with the public interest. He concludes, I think rightly, that this common carrier power extends to the areas of the civil -- extends to the areas of the Civil Rights Act of 1875 covers, namely accommodations and facilities, inns, public conveyances, and places of public amusement. And it is not surprising that the 19th century courts classified the new technologies, such as telegraphy and telephony, as common carriers.
These courts recognized that nondiscriminatory access to communications technology was just like railroads, ferries and inns: a vital part of citizenship. The logic of Harlan’s dissent supports the position that some types of social media regulation, therefore—social media is simply the telephone of the 21st century—is appropriate to maintain and strengthen our democracy.
Well, then what are we talking about when it comes to social media and big tech regulation? I realize that speaking in favor of government regulation at the FedSoc national convention is not the wisest course. Libertarian lightening may come strike me down.
So let’s begin with a basic principle of regulatory economics, at least as I learned it. Government should only interfere when there’s a marked failure. With that principle, with which I think even the most ardent laissez-faireist would agree, can we justify social media regulation? Well, as a first response, I’m going to evade the question because with regard to social media and Google this question may not be apt. The question assumes that regulated parties are market actors that are concerned with market failure. I think it’s fair to say that the large social media firms are not simply market actors, but also political actors.
Indeed, no one can look at the election of 2020, the suppression of the Hunter Biden tapes, the I would say conspiracy against Parlor, the de-platforming of our duly elected president on Twitter are 'Karen' platform behavior: de-platforming people who disagree with public health authorities or the newest one, disagreeing with the so-called climate change consensus, and not see political ideology and preference playing a driving role. When our county’s major communications networks discriminate against the views of one half of America, this is a political failure, not simply an economic failure. And let’s be honest. That one half of America against whom they’re discriminating includes a lot of people in this room. I know you. I recognize you, and I would think if trends continue, you know, you’ll be de-platformed. I suspect I will.
But beyond these more partisan interests, I think there’s a reason why people should be interested in this political failure. Why? Because markets depend upon the rule of law, and without democratic and functioning governmental institutions the rule of law will erode.
Second, directly responding to the question of market failure, I think there is indeed a market failure here. Now, given the number of antitrust specialists in this room, I’m a little bit hesitant to make too broad claims, but I think few would doubt that big tech platforms exercise some type of market power. And many would claim that this market power is sufficient to be in violation of the antitrust laws.
Third, we must be honest and recognize that we do not understand online behavior perfectly or even well, and that it may not obey the predictions that classical economic assumptions would make. Much research suggests the platforms use techniques to encourage addiction and to keep our eyeballs on their screens looking at their advertisements. We know that social media is highly correlated with depression and mental illness, particularly for teenage girls. The rate of mental illness of depression is the highest we’ve ever seen in our history, and it correlates very strongly with social media use.
So the choice to use social media could be like drug use, an example of hyperbolic discounting were users value a media pleasure too highly compared to subsequent disutility. And just as Odysseus asked his men to regulate him by tying him to the mast while sailing through the singing sirens, so we must regulate ourselves when using social media. So if I got the true Libertarians out there in the audience to the position of maybe perhaps possibly some type of regulation is appropriate, what would this regulation look like? Conservative advocates favor the most mild type of social media regulation, and I think this is found in the social media law -- I think the best one that’s passed -- that of the state of Texas.
These regulations include antidiscrimination requirements of the sort which local phone, airplanes, and other common carriers function to this day without much comment or concern. Under these regulations, firms cannot refuse service on the basis of race, religion, or political affiliation but must serve any customer who will accept their offered services. A state could impose this type of mandate under this common carriage or public accommodation jurisdictions. There are legal issues social media -- laws regulating social media present. They’ve already been examined to some degree quite well by Professor Volokh and by Professor Barnett, and I’m sure we’ll continue that discussion in the Q&A that follows.
But as a prelude to the discussion, I will bring up a largely forgotten case but one of my personal favorites. As a communications lawyer, I guess we’re entitled to somewhat idiosyncratic preferences -- and that’s an 1896 United States Supreme Court case, Western Union v. James, certainly not as famous as the civil rights case. This case reviewed a claim that a Georgia law regarding telegraph delivery of telegraphs that could emanate from outside of Georgia but delivered within the state was unconstitutional.
Western Union argued that the law interfered with the federal government’s power under the Commerce Clause. The Georgia law read in relevant part “it is hereby enacted by authority of the same that every electric telegraph company shall transmit and deliver its telegraphs with impartiality and good faith.” The U.S. Supreme Court upheld Georgia’s law, and of course the First Amendment was not even considered. It was a different time in First Amendment jurisprudence. The case led to widespread state regulation to ensure timely, impartial, and nondiscriminatory delivery of telegraphs.
The conservative social media laws ask no more than the Georgia statue at issue in Western Union v. James. We seek to have messages impartially delivered. It seems to me what made sense in 1896 still makes sense today. Thank you.
Hon. Barbara Lagoa: Thank you, Adam. Thank you. And last we have Jane who’s going to be the contrarian.
Prof. Jane Bambauer: Yes, I am here to defend the status quo. It’s a dirty job. I’ll do my best. I also reserve the right to change my mind. It sounds like we’re all sort of saying some version of this, that none of us are totally sure what is best in this. We’re in a real pickle. But still, I don’t see sufficient reason for lawmakers to interfere with Facebook or Twitter or any other social media company when they remove content or even users for their platforms.
I am quite sympathetic to the positions that each of my colleagues has staked out so far. I’m also kind of an unlikely defender of these companies because I actually don’t even use Twitter or Facebook that much. They don’t give a lot of value to me in my life, and I agree they’ve been too deferential to the sort of elite establishment, more liberal point of view. And it also really bothers me -- there is some moral failing.
It bothers me that a lot of time content is removed not because the people who saw the content on the platforms found it objectionable but because others who never received it on the platform find it objectionable that it was on the platform being enjoyed and consumed by somebody. That dynamic is -- removing content for that reason is repugnant in most circumstances, I think, to me.
Nevertheless, I think something like a public accommodation or must carry rule for these platforms would be unconstitutional but also bad policy. So first of all, I think content moderation is clearly an expressive activity, so on Eugene’s chart it somewhere pretty high in the pecking order. And that’s because users of social media in their role as listeners are selecting social media platforms in part based on the curation and house rules of the platform.
Now, I want to be really clear. I’m not saying that users -- you know, that content moderation is a main factor or even a very important factor that attracts people to the platform. I know that other users and the sort of content that they’re likely to see are the most important factors. I also don’t mean that users want social media to have a really heavy handed approach to content moderation. To the contrary, I think we understand that one of the more unique and valuable qualities of social media is that the users themselves have a lot of power over the type of information that they wind up seeing. They control the content by picking who they’re going to follow, who their friends are, and then also sort of passively by engaging and commenting on or liking certain content that winds up feeding into an algorithm that give them more of that sort of content.
Nevertheless, we do outsource some of the preliminary editing work that has to be done to maintain some minimum standard of decency on any platform. And these minimum standards are important. They’re the reasons that all of us -- or at least most of us aren’t on 8chan, right? So to give a sense of how important these are, keep in mind that even small changes in the newsfeed algorithm on Facebook or Twitter winds up causing big difference in how long and how much people engage with the platform.
Now, I know the term engagement has come to have a pretty negative connotation in the sort of anti-tech media portrayal as if engagement is something that’s sort of extracted involuntarily from people. Adam alluded to this a little bit. It may be true to some extent, but on the other hand, every expressive media is trying to engage listeners and will go to some lengths of manipulation, somewhere in the scale of manipulation, to do so. So to me the fact that Facebook users are quite sensitive to the curation choices and content moderation choices of a platform suggests that users really are in control -- listeners are in control here and that if Facebook weren’t able to clean up some of the really offensive and objectionable content and people’s news feeds were if not inundated or even occasionally interrupted by that content that they find obnoxious or indecent, they would leave. Or they would at least spend much less time on Facebook.
So that means that Facebook is giving a curated speech experience. Their house rules are -- they are inconsistently enforced. They’re enforced probably with bias. I agree with the panelists here. But they are still closely linked to the user’s taste for speech, taste for some minimum quality standard for speech. And so that makes it more like a parade organizer or a bookstore, I think, than some of the other analogies. By the way, I also do think that Facebook and Twitter do a lot of curation and censorship based on concerns related to safety, to societal harm rather than their users’ taste. This too might be expressive. I think I take quite a different read of Pruneyard -- and maybe I’ll put a pin in that. And we can talk about it a little bit. But I think that can help explain why public accommodations law does not -- would not forbid Facebook or any other platform from removing speakers who are engaged in speech on their platform that they find harmful.
Okay. So second, if you agree with me that platforms curation decisions are at least to some extent expressive, then it means that a legal mandate to carry messages that they don’t otherwise want to carry could only be justified if listeners or users are basically locked into one speech platform to the exclusion of other either existing or potentially future platforms.
Courts are comfortable occasionally requiring speech platforms to host disfavored speakers, but that only happens when the court is convinced that listeners are only going to encounter a particular type of media in one place. So it explains why a company town, for example, has to be a venue for disfavored speakers or a licensed radiobroadcaster -- why they would have to come under some sort of legal obligation to provide access to speakers. So it might seem like Facebook and Twitter have locked in their users sufficiently, especially because the Court seems willing to acknowledge that lock-in effects can be kind of behavioral or even sort of irrational.
So Turner Broadcasting was a case where the Supreme Court decided that cable has to carry local broadcasting, and the reason was that they thought that it would unlikely that people would physically change a plug in the back of their TV to switch from cable to local broadcast and then switch it back. So if that was enough for the Turner Court, it seems like, okay, well, having all of your family and friends in one place on Facebook and having a profile that you’ve already invested a lot of time in with pictures and content and what not, that probably will feel like you’re pretty locked into Facebook. I don’t think that’s enough though.
So in part I have to admit that I’m just not totally convinced that Turner and Redline hang together with other better reasoned cases like Tornillo, so you can take this with some grain of salt. But there are all sorts of inertia and sunk costs that affect speakers and listeners. So those who subscribe to the New York Times are just not likely to ever bother checking out other newspapers, especially if they haven’t seen content that they object to on the New York Times. And yet, no court would sort of intervene on the basis that they’re locked in.
So that is enough in my mind to already raise doubts, that even if Facebook locks in its users, that still might not be enough on its own to justify a mandate. But in any case, Facebook doesn’t lock in its users. Here I disagree with Adam. It’s not in a position where it can rest on its dominance. The users discipline Facebook all the time, and Twitter too, not by leaving all together in a sort of noisy protest, but rather just by reducing the amount of time that they spend there and choosing other online platforms or even going to do something else altogether.
So if Facebook didn’t reflect the values and minimum taste requirements of its users, it would lose their attention. And looking at Facebook and Twitter’s behavior over the last few years, I see desperate media companies not that different from the traditional media companies who are desperately trying to figure out what their median user wants and what their edge users will tolerate or even demand in terms of censorship and promotion. So those aren’t the behaviors of a monopolist. Okay.
So finally—and I know I’m close to the end of my time—also even if I were convinced that a must carry rule is good policy, I don’t see how it can be administrable, so first of all, as Randy mentioned, a platform would be able to proactively purge illegal content. But the edges of -- the boundaries of what some of the categories of illegal content are really quite murky, what it means to be incitement, what harassment means, what material support means even. These are hard to identify with certainty, and so we’re likely to get a lot of litigation.
But also I just wonder about things like troll farms, the Russian internet research agency, that creates overtly political content that listeners seem to want and engage with and yet are inauthentic speakers. So is that something that would have to be tolerated on a platform? Spamming is another concern. So I think by the time we’re done with this we’d have such Byzantine kind of time, place, and manner rules on these platforms that we’d see a constant stream of litigation.
And more importantly, though, I think that they just might break the companies that we claim are the public square. If there’s too much content that users don’t want to see, they and the advertisers are going to move to smaller forums that are not under this regulation. And so there goes the public forum. All right. Thank you very much.
Hon. Barbara Lagoa: Thank you, Jane. Well, I think we have a lot to talk about. I think everyone has sort of the same consensus, which is no one really knows what we should do.
Prof. Jane Bambauer: That’s the one thing we agree on.
Hon. Barbara Lagoa: Now, it’s interesting to me, Jane, you talked about people can go to other social platforms, but the reality is what are the other social platforms? Because Twitter is the platform for most people to communicate. Then you have Google which controls 90 percent of the market share. So it does become an issue, which is where does someone else go if you are de-platformed or you’re canceled on Twitter?
Prof. Jane Bambauer: So I personally have followed de-platformed people to Substack, so I think that there are -- it’s a different -- I get that it’s not really social media. It’s not social in the way these other --
Hon. Barbara Lagoa: I mean, it wouldn’t be the modern public square. It would be sort of like a little sort of, you know, off-Broadway.
Prof. Jane Bambauer: Right. But I think the Parlor experience is a really good one to focus on for a second. So many people -- there are many ways and angles to view what happened in the aftermath of the great de-platforming, but the fact is 15 million people joined Parlor in a very short amount of time. And right at the height of that momentum, Parlor was stopped, but not by Facebook and not by Twitter. They were stopped by Apple and Google who control the smartphones, and they were stopped by the cloud service firms of Amazon and other cloud servers.
So there may be an antitrust problem there, but I think the fact that users who are upset about content moderation show such willingness to move so quickly is a sign that there is an appetite for competition here. And I know 15 million is many fewer than the number of people who subscribed to President Trump’s Twitter account. I understand that. But I guess that takes me to the ultimate conclusion that part of the reason that some people won’t switch to Parlor is because Parlor has promoted itself as a place with no or very minimal house rules. That matters. I think some people will just be reluctant to go to a platform -- many people will be reluctant to join a platform with no house rules.
Hon. Barbara Lagoa: I’m going to bring this to Adam. I’d like to talk to you about an amicus brief that you filed in a state court case called Ohio v. Google. Can you discuss a little bit the facts of that case and what your amicus position is? Because to me it’s sort of interesting that when I read the amicus and I read the complaint in that case how I think of Google just as what it does, but it really is involved and it owns part of the infrastructure. It owns a lot of different things, and it’s tangled up in a lot of what we consider to be the components or how you put together the modern public square. And it’s not just Google, the search engine.
Prof. Adam Candeub: Right. I think Google is the central directory for the modern economy and really our culture. That’s where people go to find information and direct themselves, so I think that’s a very natural and correct intuition. And the suit flows from that intuition. Once again, we’re back to obscure 19th century common carrier law. And in many states, courts retain the power to declare firms common carriers and subject them to common carrier regulations, just the judge doing it him or herself, which you might like, Judge.
So using these old cases, Attorney General Yost of Ohio brought such an action against Google, and I think he has a very good claim because Google does play that central role that the telephone, that the telegraph and that the railroad played in earlier generations. And that’s pretty straightforward suit.
Hon. Barbara Lagoa: Do you think other states are going to follow suit as Ohio did?
Prof. Adam Candeub: Well, a lot depends upon the peculiarities of state law. Ohio just happened to have this common law continuance of judicial authority. But there are plenty of other states -- and if there are any state AGs out there who want to talk, I’m available after the panel.
Hon. Barbara Lagoa: I’m going to stay with you, Adam, for a second because I want to talk about the article that you wrote “Bargaining for Free Speech: Common Carriage, Network Neutrality, and Section 230.” It was cited by Justice Thomas in his concurrence in Biden v. Knight First Amendment. And in that concurrence he raised a possibility of treating online tech platforms as common carriers or public utilities from a constitutional regulatory perspective. Can you sort of talk to the audience for those who are not familiar with either your article or Justice Thomas’ concurrence about sort of where the First Amendment fault lines come into play with regard to private companies regulating user content?
Prof. Adam Candeub: Sure. So the statement -- and it was a statement concerning a denial of certiorari. It wasn’t part of an opinion. But it actually tracks very well the discussion that we’re having right now. The case involved an issue concerning whether or not President Trump’s personal Twitter account was a public forum. And as you remember from the First Amendment law, if it’s a public forum, there are limited powers of the government to censor -- to limit speakers. The Court dismissed the certiorari petition as moot because of course we have a different person in the White House now.
But Justice Thomas took this opportunity in a -- and I should say -- not because my article was cited because it was a truly scholarly discussion. I mean, I learned a lot. There was references to cases that I haven’t even heard of -- to rehash some of the issues that were brought up here, which is what are the roles of private entities when they assume essentially a public role in democratic discourse.
Hon. Barbara Lagoa: Eugene, you mentioned and so did Randy that neither of you have reached a final opinion as to whether social media companies should be regulated as public accommodations. Personally as the child of people who fled Cuba, regulation by the government makes me a little nervous. So if there were to be regulations of digital platforms, how do you envision the enforcement regime working?
Prof. Eugene Volokh: Sure. So it’s a very good question. I don’t really fully know the answer. I do want to suggest there are two separate questions here. Just to remind people, I mean, it’s obvious there are, but it’s worth remembering. One is what First Amendment constraints are there on this. So for example, the First Amendment allows people -- allows states and Congress to impose rights of access to other’s property even in the absence of any monopoly or quasi-monopoly. Turner Broadcasting involved something that did talk a little bit about monopoly. But Pruneyard -- you know, shopping centers, there are lots of shopping centers out there. Rumsfeld v. FAIR involved access to universities which are not monopolies.
So as a First Amendment matter, it may be perfectly permissible to impose restrictions even on entities that don’t have a lot of market power compared to the market as a whole. On the other hand as a policy matter I think the more we can leave to competition, the better. So one possibility that people have been talking about that’s an interesting possibility, though in some respects much more radical in the change that it would create to the structure of these things, is a requirement of interoperability.
So with phone companies, they’re partly non-monopolies because I can call anybody using my phone company regardless of what phone company they’re on. If phone companies only provided access within their network, then it would be pretty likely because of network effects that one company would end up dominating everything because nobody would want to join the competitor because they wouldn’t be able to call their friends on the competitor.
So you can imagine a regime where Facebook and Twitter for example had to provide interoperability, which is to say that if MeWe, a competitor to Facebook, or Parlor, competitor to Twitter, comes up, then they could deliver things to people who are on other networks and can receive things from people who are on other networks. And that would make it easier for upstarts to be created, and somebody could -- in part because somebody could move to an upstart without losing access to all of their friends on the other platform.
So you could imagine that as a sort of content neutral rule that might better harness the power of our marketplace rather than purely the power of regulation. This having been said, I’m sure there are lots of both technical issues and economic issues having to do with that. And certainly Facebook and Twitter might say, we invested billions of dollars in creating our networks in a way that was not open to third parties, and we are entitled to preserve that investment without this kind of very massive structural regulation.
But that’s one possible alternative that some people have been talking about. Try to make sure that there are going to be many more competitors. And the way to do that has to be through some sort of interoperability requirement.
Hon. Barbara Lagoa: Randy, do you have a response?
Prof. Randy E. Barnett: Yeah. Here’s one way to think about it. Eugene works for UCLA, a government run school -- state-owned school. I work for Georgetown, a private university. This means that Eugene has certain First Amendment protections at UCLA. At Georgetown, I don’t have First Amendment protections because it’s a private university. The idea that Georgetown would be subjected to the same kind of free speech requirements -- I’m not proposing this by the way. But the idea that Georgetown would be subjected to the same kind of free speech protections that UCLA is doesn’t strike me as that radical a proposal.
I mean, I don’t think it would be a radical result. I don’t think it’s necessary or proper to do that with universities, frankly, because they’re not common carriers. They’re not public forum. They don’t fit the criteria. So I’m just using it as an analogy.
Our conditions of employment are not that different. Georgetown actually does honor free speech. We have a free speech policy. It’s voluntary in the sense that it’s not mandated by the government. But I think what we’re -- actually, we’re not proposing, but what we’re open to -- or what I’m open to the suggestion is that a private entity like Facebook, Twitter, and UCLA would be subject to constraints provided by the First Amendment that UCLA is already subject to but Facebook and Twitter are not. So it doesn’t seem like it’s that onerous.
And at the same time, as Eugene has pointed out and as I tried to also point out, UCLA is free to regulated unprotected speech and to exclude unprotected speech. That would not violate the First Amendment. And UCLA cannot be made to speak by the government and say something that they don’t believe in. And I think the same kind of constraints -- and the same sort of constraints should be imposed on regulations of these social media platforms if we’re open to them.
Hon. Barbara Lagoa: Well, let me -- I’m sorry, Jane. Go ahead.
Prof. Jane Bambauer: So even if we take that analogy, it’s not clear whether Facebook is like a room within the university where there might be some programming that the university should be able to control what other speakers say or whether it’s more like the open mall on the campus where almost anything goes. And so I think even in that analogy leaves some that open issues.
And I say this as concern -- I guess the other concern is that online behavior really is different from in-person behavior, and I think we should just sort of put that on the table here that when there’s a loud and obnoxious ranter on the public lawn of a university -- I know this from personal experience because it was my grandfather. He was the guy that was like the looney yelling at people, and I was so -- you know, all of the other family members were ashamed. But you could watch people politely just route around him. On the internet, you know, speech is just -- toxic trolling speech is much more common, and there’s less of social signaling and embarrassment and less reason not to do it.
The other thing I want to say, though, about this analogy to public places of accommodation is that I think two things are going on. The public accommodations law prevents businesses from controlling access based on the status of the person who wants something. And there I would agree with Randy that if Facebook were to say -- I would be comfortable with a law that says that Facebook could not deny someone access to a Facebook profile because they are -- because they subscribe to some sort of ideology. What’s going on here, though -- in fact what’s happening is that the speech and behavior that is actually taking place on these fora are the reason that the platforms are or are not taking action.
And so this is quite different. Even public accommodations can kick people out for being obnoxious and rude or for disturbing their other patrons. And even the shopping center in Pruneyard -- the entire case was premised on the idea, first of all, that it was a handful of orderly persons soliciting signatures. So that word “orderly” is important, I think -- and then also that Pruneyard actually had no direct First Amendment interest. They actually did not object to the content of the leafleteers. They objected as property owners rather than as a speech forum. And that, I think, really limits how widely we should be interpreting that case to prevent a company that’s trying to actually manage the speech that’s being done on their platform.
Prof. Eugene Volokh: Can I just briefly respond? So I think there’s a lot to be said about all this and in support of what Jane is saying, but I want to just suggest one important distinction here. And I mentioned this when I was talking about the hosting function versus the comment management function. If I have a Facebook page, which I do but I never monitor -- but imagine that I had a Facebook page where I actually had people commenting, it would be really bad for our conversations if people could freely go up there, post vulgarities, post spam, post various other things. I could certainly imagine myself shutting down the Facebook page if people were intruding in those conversations this way.
So I think there’s a lot of value and possibly First Amendment protected value in this kind of moderation of comments on other people’s pages. On the other hand, it means nothing to me that some Nazi who thinks that people like me should have been exterminated happens to have a Facebook page. I’m upset that he’s out there in some sense, but it’s not something that interferes with my enjoyment of Facebook simply knowing that the Nazi’s out there. And if it did, then I don’t think that that’s sort of the kind of reasonable concern that needs to be accommodated.
To give an example. Twitter allows pornography. There are porn Twitter feeds out there. I don’t think I’ve ever accidentally stumbled across one or had --
Prof. Randy E. Barnett: -- This is new information. I’ve 36,000 followers, but now I’ve learned something about Twitter.
Prof. Eugene Volokh: Well, there you go. So again, that kind of mere presence of something on the network doesn’t really make it unusable except in the sense that some people may militantly say, I refuse to do it, have anything to do with any property that has anything like that on it. And again, we don’t view that as a reason to allow phone companies to block lines. So that’s why I think it’s important for us to distinguish attempts to moderate that are aimed at just removing things all together, even when they’re seen by willing viewers versus blocking things, and especially spam which needs to be blocked for things to be viable, that appear on the pages of people who didn’t volunteer for that.
Hon. Barbara Lagoa: Well, this is sort of going with that idea, and this goes to Randy and Jane. And then everyone else can join in. But I can’t remember who it was. I think it was Randy who did -- in defining social media companies, you talked about that these forums should be limited to barring speech that the Supreme Court has found to be unprotected from government restriction. And I’d like to focus on one of them in particular which is the fraud category.
Fraud is unprotected speech, but would social media companies be able to ban misinformation? Because my idea of misinformation may be your idea of information, and who gets to decide what is misinformation and what is information? Because you have people who -- I mean, now we’re living in a society where it’s Orwellian, and I’m not sure I can call myself a woman anymore.
Prof. Randy E. Barnett: Don’t distract me, Judge. As my Con Law 2 students will affirm, I make a very big point of observing to them that fraud is not the same thing as dishonest or false. Fraud is a tort. Fraud has elements, and you have to make out those elements in order to make a case of fraud. You can’t go into court and sue somebody for saying something that’s false. So the fraud that is unprotected is actual tort of fraud. Same thing with commercial speech.
Commercial speech is regulated by its own test, the Central Hudson test, in that commercial speech must not be misleading. But remember, that’s misleading with respect to commercial transaction, with respect to a commercial product. And so I could imagine that also could be something that Facebook or Twitter could ban, misleading -- that would not be protected commercial speech. But I think it’s very important when you make exceptions to liberty -- make exceptions to a presumption of liberty, to coin a phrase, that these exceptions have to be identifiable and definable and then very limited.
Otherwise, the exceptions will swallow the rule. That is the problem -- that’s the danger of making any exceptions. On the other hand, we have always made exceptions, and so we cannot fail to make exceptions. The exception to freedom of contract is fraud, duress, unconscionability, incapacity. We have exceptions to freedom of contract. They just have to be limited.
Hon. Barbara Lagoa: Jane, do you want to respond?
Prof. Jane Bambauer: Yeah. I agree with the description that fraud is quite narrow, that there are elements that -- there are intent elements. There are harm elements, which actually a lot of the misinformation -- you know, debates about misinformation sort of ignore whether there’s actually evidence of harm. That said, though, I’m more reluctant than Randy, again, to want to prevent a private company from experimenting with intervening with misinformation or potential misinformation that might have harmful effects.
Now, one reason I say this is that my thinking about what has happened in the wake of social media has sort of evolved over time. And I’m convinced that when people are engaged on social media, their interest in pursuing accuracy is sometimes intention or conflict -- direct conflict with their interest in a sense of belonging and with socializing and with the reasons we sort of -- the principle reason many people go on to social media in the first place. And so I am concerned about conspiracy theories, about false claims of various sorts that do not constitute fraud but that nevertheless cause harm, either internalities or externalities to other people. At the same time right now -- we’re not in the equilibrium yet.
Right now, Facebook and Twitter are over-moderating. I think I’d agree with that. They’re not -- they are making mistakes. They’re taking a sort of authoritative position where they should not -- where we should have much more humility. And a good example is the lab theory of COVID, which was treated as misinformation and was removed everywhere on social media and then later now it seems like it’s much more credible. But still, I’m glad that we’re in this very early phase of --
Hon. Barbara Lagoa: Can I interrupt you for a second --
Prof. Jane Bambauer: Yeah.
Hon. Barbara Lagoa: -- because I’d like to address that point which is a lot of people -- I’m not sure people in this room -- but a lot of people, particularly young people, teens, millennials, literally get their information and their news from this [holds up her phone] and mainly from Twitter. So when Twitter takes down any and all information on anything, even a news source, that you then have to track down in order to see what someone actually said, that is really very problematic for a country that’s a democratic country that believes in free speech and has a constitutional right to freedom of speech. How do we address that because that is a problem? It’s not just misinformation --
Prof. Jane Bambauer: That’s the error from over --
Hon. Barbara Lagoa: -- but literally taking down information and access to information.
Prof. Jane Bambauer: Yeah. I mean, so that’s the error on one side. On the other side, leaving things up given that teenagers get all their news from Twitter, that may have its own perverse effects. My preferred solution here ironically is to expand opportunity to go after speakers for -- you know, basically take the model of fraud and create some sort of negligence information sort of category so that those -- you know, speech that can be proven to have caused harm where the speaker knew or should have known that it was both wrong and likely to cause harm could be held liable. And then that way there’s much less pressure on the platforms to try to have to manage these things.
Hon. Barbara Lagoa: Adam, I know you want to respond, but I think we -- can you respond briefly?
Prof. Adam Candeub: I’ll be very brief.
Hon. Barbara Lagoa: Okay.
Prof. Adam Candeub: There’s a long line. I’ll defer to you.
Hon. Barbara Lagoa: Okay. I think we should start taking questions from the audience.
Allison Hayward: Good morning. My name’s Allison Hayward. I am the case screening manager at the Facebook Oversight Board. A lot of people are talking about content moderation here this morning. I actual do it. And I just want to say first of all this has been an excellent panel. There’s not a lot of mature, grown up analysis being done in this space in my opinion right now. And this is just emblematic of how we should be talking about these questions and questions that I live with every day.
My question, though, is this. We’ve been talking about American users on an American platform. I think U.S. users make up maybe 12 percent of the users on Facebook. The vast majority of our appeals, however, come from the U.S. But that’s another issue. I think that’s because Americans are confident and litigious, but anyway. So you’ve got a situation where you can’t really bound Facebook geographically. Facebook can bound itself in a negative way but geocaching particular regions if they’re being told they have to.
But as regulators, how do you deal with the fact that we’re talking about these wonderful First Amendment values that don’t apply legally to most of the people using Facebook? I think there’s something missing in this conversation, and I would really like to hear some proposal for how you would propose to manage this. Would you say that there’s one standard for users in the U.S. and one standard for the rest of the world?
Would you say that the rest of the world gets these wonderful First Amendment benefits that Americans have, which I treasure? Or is there some other way of coping with the fact that what we’re talking about is an international body of people that really cannot be geographically bound? Thank you.
Prof. Eugene Volokh: So I’ve thought a little bit about this, and I’m a big believer in geolocation and geofencing in the following sense: when a company does business in many countries, it needs to abide by the laws of those countries. Some of those laws may be ones I don’t like, and those countries may dislike some of the laws that we have here in the U.S. But it’s not a serious imposition, it seems to me, in a company like Facebook or company like Twitter to say that if you’re operating in multiple countries you have to have different rules for different countries. Fortunately these days, there is good technology that with to a high degree of accuracy determines which country someone’s coming from.
And yes, there could be then a solution saying, look, cartoons of Muhammad may be illegal in Saudi Arabia or in some other country. I don’t know if they are, but let’s say they are. Understandable that’s the way things are there, and criticism of the Thai king is illegal in Thailand. I think that’s very bad, but they’re a sovereign country. And there should be -- therefore, if Facebook wants to operate in those countries, there should be blocking like that there.
But we should insist in America that they not enforce these rules here because the danger otherwise is that the most restrictive regimes, could be China -- not all the companies operate there, but to the extent that some do -- China says, you have to block criticism of Xi Jinping throughout the whole country or throughout the whole world, excuse me. So I think it’s perfectly sensible to have different rules.
And just as I think Americans are entitled to speak subject to American law on Facebook I wouldn’t begrudge the French to insist that the Frenchmen be allowed to speak subject to French law on Facebook. And to the extent that that is somewhat burdensome on a company—and I can see why it would be—that’s just a burden that comes from operating in multiple countries.
Prof. Randy E. Barnett: I have something I think really quick to add, and that is that if a privilege immunity of citizens of the United States have been violated, that person is entitled to a remedy, either in state court or by state law. Or if states don’t do it, then federal government can do it. And so if somebody is barred from Twitter or Facebook who’s an American citizen, they would exercise this cause of action that they would have either by statute or some other means. And Facebook or Twitter would have violated their rights as an American.
I don’t think that this would give Congress the power under its Section 5 powers to have an extraterritorial law which would protect the rights of citizens of other countries. This would be a protection that would be afforded to Americans under the Constitution and asserted by them as individuals when their individual right has been violated.
Hon. Barbara Lagoa: Does anyone else want to respond? Okay. Next question.
Anthony Bruno (sp): Hi, my name’s Anthony Bruno. So questions for the regulations curious panelists, it seems like there’s two different things going on here. And I just want to drill down on it. It seems like you may all be open to the idea of some affirmative legislation passed by Congress to restrict or provide protection for the users on these platforms. That might give some protection, but I also think that’s quite unrealistic that we would actually see some legislation coming out of Congress. Maybe you’d get something at the state level.
But I think there’s a second question. I think Professor Barnett’s touching on it a little bit more in the context of the individual right of the user. Is the panel open to the idea that the user, absent some statute giving them some protection, can actually go into court to vindicate their First Amendment rights as it would be if it was government controlled and they were de-platformed. Do we need a statutory protection here, or are we saying there’s a constitutional right that an individual could go into court to vindicate?
Prof. Jane Bambauer: Yeah. So right now doing nothing, I think -- if no other statute is introduced, I think using a public accommodations law to make that sort of claim is almost -- is bound to be a sure loser, especially because we do have a federal statute, Section 230, that protects or gives -- that, yeah, protects a platform’s interest in doing its own content moderation. And so I think something at the state level at least --
Hon. Barbara Lagoa: Jane, can we talk a little bit about 230 because we haven’t really talked about that?
Prof. Jane Bambauer: Yeah.
Hon. Barbara Lagoa: Because 230 -- when that came into being, it was at the beginning or the advent of this technology, and it was AOL and CompuServe which obviously was a long time ago. And they don’t exist anymore. So the question is the government gave these companies that immunity without anything in return.
Prof. Jane Bambauer: Well, I wouldn’t quite put it that way, but so the platforms in the early ages of the worldwide web -- the concern was that if platforms did anything active to remove bad content, maybe illegal, maybe not illegal content, that that active engagement with the content would make it susceptible to liability as a publisher for any content that was left up that was also illegal -- defamatory, say.
So you can see how something like Facebook wouldn’t exist if any person who’s ever been defamed could sue Facebook for failing to remove the post, right? So Section 230 was designed to encourage companies like Facebook or the early progenitors from going ahead and actively removing bad or illegal content without having to worry about becoming effectively a publisher. Now, today I think there’s a big discussion about whether that’s the right policy now that the World Wide Web is well established and these platforms are clearly doing fine in terms of their revenue.
Hon. Barbara Lagoa: And I can’t remember now, but I think Adam wrote about this or maybe it was Randy. But the dichotomy where the New York Times will have to pull a letter if it was in print that’s defamatory. But if the same letter is put on the New York Times’ Twitter account, it does not, which is strange.
Prof. Adam Candeub: It’s very strange, and I also think it goes to our content moderation discussion because the platforms I think incongruously claim that they have protection under Section 230(c)(1) which involved third party speech when they’re moderating content. So they claim that they have complete immunity to violate antidiscrimination laws, fraud laws when they’re moderating content because it’s third party speech. At the same time on the other side of their mouth they’ll say well, we have a First Amendment right to content moderate because it's our speech. So I think that’s an inconsistency that the courts have allowed the platforms to continue with and I think something that will have to be examined more closely.
Hon. Barbara Lagoa: Thank you.
Prof. Eugene Volokh: If I could just quickly respond to a somewhat different facet of the question. As I understood the question is under existing law -- without any new statutes can there be a claim brought, an exclusion decision by Facebook or Twitter or Google is illegal or unconstitutional. And I think the answer is no. I don’t read Section 230(c)(2) as broadly as Jane does. I used to, and then Adam persuaded me otherwise.
Prof. Adam Candeub: That was the biggest success of my academic career.
Prof. Eugene Volokh: But there’s got to be a cause of action. Before we get to the question of whether it’s preempted by 230, there’s got to be a cause of action. Generally speaking, state public accommodation law does not apply to platforms, and I think correctly. And the First Amendment doesn’t apply to platforms because they are private actors. There could be good reason for Congress to try to treat them as public and publicly regulated, but under existing law they are private actors and, I think, quite correctly treated that way. There are a few possible asterisks in a few possible situations. But generally speaking, it would require legislation whether federal or state for any of these restrictions to operate, as it should be, I think.
Hon. Barbara Lagoa: Let’s go to the next question in the front.
Tyler Herman (sp): Good morning. My name is Tyler Herman. I want to highlight a specific type of content moderation and see if it impacts your analysis at all or specifically the answer to the previous question in fact. Over the last two years a big focus of the mis- and disinformation has been election related mis- and disinformation and at the federal level, I believe -- and certainly secretaries of state have created programs where they are monitoring posts to social media. And they, the government entity, are going to Facebook or Twitter and saying, you should take a look at this post; this post is false; this post is problematic. And then it’s the social media company that’s removing it, but they’re doing it at the direction of or after being highlighted by a government entity.
Prof. Eugene Volokh: So that’s the asterisk that I mentioned. There’s an interesting question. What happens when private entities are -- kind of get messages from the government saying, take stuff down? I did some research recently, and here’s the shape of the First Amendment law in the circuits on this. If the government says, you better take it down or else, that’s government coercion. That’s state action and that is in fact -- state or federal. It doesn’t matter. That is in fact a possible First Amendment violation. But the cases say -- they’re pre-internet cases, but they’re very structurally analogous -- if the government merely urges entities to take things down, writes a letter some company saying -- or some bookstore, you shouldn’t carry this game that people find offensive for ideological reasons that we find offensive -- that’s just government speech. And that’s just kind of government encouragement that they’re entitled to engage in.
Here’s the curious thing. When it comes to the Fourth Amendment, the rule is somewhat different. At least a lot of lower courts say if the government calls up me as a landlord and says, look, we can’t search your tenant’s apartment because we don’t have probable cause and a warrant, but we know you can; and we know you have the right under your contract to go and kind of inspect it for various things; next time you’re there, you want to check and see if there are any marijuana plants or something like that, then that is state action. So government persuasion and encouragement and requests in the Fourth Amendment are state action, in the First Amendment are not. And I don’t know what the right answer is.
Hon. Barbara Lagoa: But you’re asking that person to become a state actor for you. That’s why.
Prof. Eugene Volokh: Right. But the thing is if the government is calling me up and telling me to remove something from my site just because -- I mean, the classic example is a police department calls up a newspaper and says, look, we know you’re about to run this story; we can’t stop you, but it’s going to interfere with a police investigation; don’t you want to catch criminals; don’t you want criminals to be caught; if you do, can you just accommodate us on this? I think that happens not infrequently. CIA sometimes does this with regard to national security things. And I think that’s generally thought not to be enough to be state action. Maybe it should be. I don’t know.
Prof. Adam Candeub: Well, first, we’ll talk about the cases maybe afterwards. I think that there is some case law suggesting that a coordination of parallel action, even in the First Amendment, can constitute state action. But I want to get this back to common carriage and one of the benefits of a common carriage type regime. As the questioner correctly pointed out, one of the big problems of having large, concentrated media entities is that they can collude and cooperate with government and take away our rights and do bad things to democracy.
Common carriage law is very -- it has a nice effect because it allows the media companies to say, look, I’m sorry, Mr. Government; I cannot bias my reporting or my algorithms to make you happy; it’s against the law. And it places a nice barrier between the government and media and First Amendment actors. I think that’s one of the reasons why we have a free press and we have not worried about things like constant telephone surveillance.
Hon. Barbara Lagoa: Let’s go to the microphone in the back first.
Duane Horning: Good morning. My name is Duane Horning. I’m from San Diego, California, the home of Pruneyard. And Pruneyard is notable because it requires shopping centers to function essentially as the public square -- literally the public square, and it requires the private owners of those shopping centers to accommodate public speakers as the government would in a public square. Pruneyard is limited to California. It was a California Supreme Court case. The U.S. Supreme Court case affirmed it but only for California.
Now, I’m not a big fan of Pruneyard, but it does seem to me that it’s a very easy step to go from physical shopping centers governed by Pruneyard to internet platforms, where shopping centers are physically the public square, and now the internet, essentially, and the companies we’ve been talking about are the electronic version of that public square. It seems to me that that would be almost an automatic extension. Now, it is limited to California, but it just so happens Facebook and Twitter and Alphabet and Amazon -- all these companies are in California. And California has 11 percent of the population.
And if 12 percent of Facebook customers are in the U.S., I think probably the other 88 percent are in California. So if Pruneyard was extended to apply to these companies only in California, the effect would be truly worldwide. Why wouldn’t Pruneyard be an easy place for someone who wanted to regulate the internet actors as the public square -- to be a basis to do so?
Prof. Adam Candeub: Just quickly, the sad reality is, from my perspective, that the state courts in California have been not very pro Pruneyard, and they have not expanded, as far as I know, the doctrine in a lot of different places. But I’ll leave it to Jane.
Prof. Randy E. Barnett: I see a difference between shopping centers which provide a public accommodation for shopping in which a nondiscrimination norm should be applicable under public accommodation law and is applicable under public accommodation laws -- you can’t stop people -- you cannot discriminate against people on the basis of race and religion and others from shopping at that shopping center. I don’t see public shopping centers as creating an expressive forum -- a forum for expression.
And therefore, I question whether a First Amendment type protection is applicable to a private arrangement, which is not about expression at all. What we’re talking about today is the creation of expressive forums and whether a public accommodation of an expressive forum people can be excluded because of their speech. And that would be the regulation of an expressive forum that would be bound by a First Amendment regime, but I think private shopping centers don’t fit that description.
Duane Horning: Can I just follow up on that? Because actually under Pruneyard, that’s exactly what’s required. It has nothing to do with excluding people because of their color not to shop there. It requires the shopping center owners to allow public expressive speech.
Prof. Randy E. Barnett: I know. I’m dissenting from Pruneyard is what I’m doing. And the fact that it’s a California case makes it all the worse.
Prof. Jane Bambauer: The shopping center, though, in Pruneyard never actually argued -- this is why Randy’s point about expressive forum isn’t so important. They never argued they are an expressive forum. They argued that as a private property owner merely because of their property interest they should have a First Amendment right to exclude speakers because the speakers are -- it would become sort of compelled hosting of that speech. And the case, I think, is limited to -- it’s quite limited to its facts.
So first of all, like I said earlier, the majority emphasized that these were orderly persons, so they weren’t sort of getting in the way of the shopping mall’s attractiveness to its other customers. But more importantly Powell’s concurrence -- if you read that, I think it has a lot of fodder for explaining why a social media platform could not be put in the same category as a shopping center. So first of all, Powell said that he’s worried that if there’s substantial annoyance to other customers for having to pass through or even be associated with the disfavored speech, then it would require these really elaborate time, place, and manner restrictions. And he thought that Pruneyard should not impose -- that even California state constitution could not impose that kind of Byzantine rule creation requirement on a private property owner.
But he also said that—and this I think is important—that the strong emotions that would be evoked by speech by others who are seeing it in a public place might cause a shopping center like Pruneyard to have to respond. And that, I think, is what’s happening with Facebook and Twitter, that they -- you know, Facebook really didn’t want to be in the content moderation business. But the reaction to what is posted there publicly and publicly viewable is so repugnant to people that Facebook, in order to keep credibility and the happiness of many of their users, had to respond.
And then finally, Powell explained that in this case there was no evidence about the sort of number and type of interest groups that are going to seek access to the center and that this shopping center, Pruneyard, did not object to the ideas that were contained in the particular pamphleteers. So all of those pretty narrowly conscribe Pruneyard. Eugene, I’m wondering what you think.
Hon. Barbara Lagoa: Eugene, can we go to the next person? Because we have a lot of people still left. Let’s go to the front microphone. Thank you.
Connor Mighell: Connor Mighell, Center for the American Future. This question actually goes to Section 230’s text, which probably should matter if regulation is on the table. 230(c)(1) says platforms should not be treated as providers of third party content that they host. But (c)(2) is the liability shield for platforms, and it seems to require platforms to only censor or edit in good faith a limited list of objectionable content, not just everything they don’t like, in order to fall under this shield. And circuit courts have interpreted (c)(2) broadly to shield a great deal of decisions by platforms or have kind of ignored it altogether in favor of (c)(1). What do you think SCOTUS will do when they reach (c)(2)? And how would you advise providers to read the entirety of Section 230 in the meantime?
Prof. Eugene Volokh: So 230(c)(2) to be fair provides that platforms are immune for in good faith restricting content that is lewd, filthy, harassing, violent, or otherwise objectionable. So it doesn’t just have a list. It says “or otherwise objectionable.” And one controversy among lower courts, which are somewhat split on this, is whether that means anything the platforms -- and good faith simply means sincerely find objectionable -- so for example, they find certain ideologies objectionable.
Certainly people find ideologies objectionable. They can just block it because that’s otherwise objectionable. Or whether you follow the interpretive cannon of ejusdem generis which says that terms such as “otherwise objectionable” should be read in light of the terms that proceed it. And Adam in my article just out a few months ago in the Journal of Free Speech Law argues that in fact the ejusdem generis approach is the better approach.
And the thing that the earlier things all have in common is these are terms that have historically been used to regulate material on telecommunications media: harassing phone calls, violent television programing, lewd and etc. indecent material on the internet. And in fact every single one of those terms before the otherwise objectionable appears in one -- in at least one other portion of the Communications Decency Act, the very act that included Section 230, so that in context it shouldn’t authorize platforms to remove material because it’s objectionable based on its ideology but only because it’s objectionable based on criteria that historically have been used as a basis for telecommunications regulation.
Whether the Supreme Court will buy that or not, I have no idea. But I think Adam and I can confidently say think that’s the better approach. Once there’s an underlying cause of action that the plaintiff can bring -- again, the main problem for most of these plaintiffs is not Section 230(c)(2). The main problem is there’s generally no underlying cause of action that restricts the platform’s ability to remove things, even in the absence of (c)(2).
Hon. Barbara Lagoa: Question in the back, please.
Anthony Pericolo: Thank you. Anthony Pericolo, student at Harvard Law. So one of the biggest issues I’ve noticed with tech is that they’re supporting what I call demand side discrimination, which is effectively this woke fiction that the hamburger or the service that I’m using is more valuable based on the race of the owner of the business or the service. And so we’ve seen that by Facebook and Google putting out free advertising for businesses owned by specific races. So I’m wondering can there be and should there be a class action lawsuit against these platform for such content. And if not, does this weaken their Section 230 immunity?
Hon. Barbara Lagoa: Who would like to address that?
Pro. Randy E. Barnett: IDK.
Prof. Eugene Volokh: It’s an interesting question. It’s kind of tangential I think to what we’ve been talking about. But it’s an interesting question. It all depends on whether there’s underlying cause of action.
Hon. Barbara Lagoa: Let’s go to the front.
Questioner 7: Sure. Professor Barnett earlier referenced sort of the idea that it would be acceptable to have -- or at least philosophically to have the same sort of rules apply to public universities and private universities in the free speech context. So I think I’ve sued about 35 public universities. I’ve never sued a private school. I did send a nasty letter that was successful to Georgetown.
Prof. Randy E. Barnett: I’m sure it wasn’t nasty enough.
Questioner 7: But I think the problem -- the reason I’ve never sued them is because if -- I think the problem is if you imagine instead of Georgetown imagine a religious college, like a Catholic University.
Prof. Randy E. Barnett: You’re talking to a nice Jewish boy up here who teaches at Georgetown.
Questioner 7: So there are schools like Catholic University like Liberty for whom it feels different. The reason I think that’s relevant in this context is all this conversation has basically been about, you know, Facebook and Twitter and these major platforms. But things like GodTube also exist, websites that are -- that clearly do have their own values that they’re bringing to the conversation.
I’m wondering how the public accommodations arguments, even the common carrier arguments -- how would you limit an attempt to apply those kinds of policies to them without stepping into a situation where you really do have an obvious imposition on someone else’s free exercise rights, free speech rights? How do you sort of cabin it so it’s just Mark Zuckerberg who’s put out and not GodTube and all the others?
Prof. Randy E. Barnett: Well, in case I was misunderstood, I was not at all proposing that universities -- private universities should be considered common carriers or public accommodations. I was not proposing that regime at all. All I was using it as is an analogy between one regime in which the First Amendment is being applied legally and another regime next to it in which it’s not being applied legally. And it doesn’t look that different and it wouldn’t be the onerous for that regime to be applied over here. It would look just like UCLA does. And so that was the only purpose of the analogy, not to suggest that Georgetown or any private university qualifies in that middle category I’m talking about.
Prof. Eugene Volokh: So just two datapoints that directly relate to this point including really just universities. California has a state statute that bans private universities from imposing speech codes. And as best I can tell the skies have not fallen, and it is a restriction on private property and private entities, probably not very heavily enforced. It’s there. There is an exception for religious universities and likewise for private high schools -- an exception for religious high schools.
So one possibility is to say it’s not unconstitutional to impose such mandates, but maybe we do want to maintain a different space for religious entities. One other example is Rumsfeld v. FAIR. Rumsfeld v. FAIR involved -- I think this is why it’s such an important addition to Pruneyard. It involved entities that are all in the speech business: universities. It involved universities, many of which were bitterly opposed to the speech they were required to host. They were required to host military recruiters, and they were opposed to military recruiting because at the time it was discriminatory based on sexual orientation.
They were getting huge push back from their students -- from many of their students, at least the activist students, demanding that they expel the recruiters. They were finding themselves having to respond in some situations and say, well, now that you’re making us talk about this and you’re making us host them, let’s explain what our position is and such. And yet, the Court unanimously said that it’s permissible to impose that burden.
This having been said, Solomon Amendment is another example. It actually had an exception for religious universities, although specifically focused on religious pacifist universities that might object to military recruiters because it’s the military rather than because of don’t ask, don’t tell. So again, occasionally when Congress or state legislatures enact this, they recognized that religious entities ought to be treated differently, ought to be given an extra sphere of latitude. I’m not sure it’s constitutionally compelled to do so, though.
Hon. Barbara Lagoa: Let’s do the last two speakers -- the last two audience members. In the back first.
Alden Abbott: Yes, thank you. Alden Abbott, McLean, Virginia. Last July, White House Press Secretary Jen Psaki stated regarding the potential de-platforming of certain stated views on COVID “We’re flagging problematic posts for Facebook that spread disinformation. We’re working with doctors and medical experts who are popular with their audience with accurate information. So we’re helping get trusted content out there.” Does that involve sufficient government entanglement and coercion on a platform to suggest state action?
Hon. Barbara Lagoa: Who would like to address that?
Prof. Adam Candeub: Well, I don’t want to in anyway disagree with Eugene. It’s not a good position to be in, but I think the law is a little bit less clear that there is a room for sort of parallel action and collusion with a wink. You know, when Henry II asked his barons “Will anyone rid me of this troublesome priest?” and they -- hypothetically of course, and they marched down to Canterbury and killed Thomas Becket, was that state action? I would say yes.
Under current president, I’m not so sure, but I think the courts could move in that direction, especially given we all know what’s going on. Is there a clear threat? Is Jen Psaki saying I’m going to come over and beat Zuckerberg up if he doesn’t do this? Well, maybe she is. I don’t know.
Prof. Randy E. Barnett: I think she could take him.
Prof. Adam Candeub: Right. But the test may require a more clear quid pro quo.
Hon. Barbara Lagoa: Jane or Eugene, you want to address it? Jane, you do?
Prof. Jane Bambauer: Yeah. I’m in surprising agreement with Adam on this one. This is a surface where I think we should be taking a hard look. Well, I’ll just leave it at that.
Hon. Barbara Lagoa: Okay. And then the last question from the audience.
Diana Furchtgott-Roth: Hi, I’m Diana Furchtgott-Roth from George Washington University. I just have a quick follow up on the question before about Section 230 and blocking content. Nowhere it says that under Section 230 that these companies are allowed to block speakers, only offensive content. Can you all comment on why these platforms were allowed to block President Trump? Thank you.
Hon. Barbara Lagoa: Adam, you want to take it?
Prof. Adam Candeub: Yeah. I just don’t think the courts have been that sensitive to that textual difference. I mean, they’ve largely elided speakers and content as I read the cases.
Prof. Eugene Volokh: Well, I think that’s part of it, but also there’s no underlying cause of action that would keep Twitter from removing Trump’s account. If there were a statute that said, you can’t discriminate against speakers based on the content of their speech or the content of their past speech or whatever else, then there’d be a question of whether it’s pre-empted by 230(c)(2). But I know of no public accommodation law, for example, that had been interpreted as applying to social media platforms as opposed to, say, brick and mortar outfits and the like. 230(c)(2), it’s very important how it’s going to be interpreted.
But the very first question is is there something that the defendants are doing that is said to be tortious or said to be violation of some statute? And I just don’t think that under current law removing someone from a platform, saying you can’t use our property anymore, is illegal. Maybe it should be. I just don’t think it is.
Hon. Barbara Lagoa: Right. And that’s why Justice Thomas’ concurrence is so interesting to read because he does go through the history of public accommodation and common carriers. And maybe we should be thinking about this in a different way because these companies are very, very different from previous companies that we’ve had who have all this access to information. And they’re the ones that wield the power in terms of that access.
I want to thank the panelists. Thank you and thank you to the audience members. I would be remiss if I did not say that Professor Randy Barnett will be signing his book, The Original Meaning of the Fourteenth Amendment, in the mezzanine starting now.
Prof. Randy E. Barnett: And I’m going to be running off right away to get there.
Hon. Barbara Lagoa: So I hope that you will go there and get a booked signed.
2021 National Lawyers Convention
2021 National Lawyers Convention
|Topics:||Civil Rights • Culture • Education Policy|
Competing legal and cultural interests are at play in the push to implement critical race theory and diversity, equity, and inclusion-based curricula at all levels from elementary school through higher education. Some argue that state bans are necessary to combat a divisive, stigmatizing, and arguably unlawful set of educational practices. Others take a libertarian approach, casting classrooms as marketplaces of ideas and criticizing proponents of CRT-bans as opponents of free speech. Still others praise these educational practices for raising greater awareness of American’s historical injustices, arguing that this is a necessary step towards a more equitable and inclusive society. In the tradition of the First Amendment, this convergence of issues leaves much room for a lively debate.
2021 National Lawyers Convention
|Topics:||Culture • Financial Services|
Under the Obama Administration’s Operation Choke Point initiative bank regulators sought to de-bank various legal industries such as payday lenders, firearms dealers, and home-based charities. Today, banks have increasingly acted on their own initiative to effectively operate a new voluntary form of Operation Choke Point. In January 2021, Florida’s Bank United closed Donald Trump’s personal bank account. Other banks have cut off others seemingly because of political views and have been pressured by activists to cut off funding to politically-disfavored industries, religious organizations, and others, effectively a new voluntary form of Operation Choke Point.
Is this voluntary activity the free exercise of business judgment, or is it inappropriate response to external pressure? What kind of unintended consequences might occur where banks use their business to punish based on viewpoint? Could this behavior make banks into utilities subject to more financial regulation or even government actors carrying out government directives? What are the appropriate responses to "cancel culture" or "choke point" tactics in banking? What steps are appropriate either through governmental or private actions?
2021 National Lawyers Convention
|Topics:||Federalism • Telecommunications & Electronic Media|
The Covid-19 pandemic accelerated the desire for increased—indeed, universal—broadband access. This panel will focus on the infusion of federal and state funding into broadband networks. The panel will explore the ways in which states and private actors can play a role in ubiquitous deployment, the appropriate role of the FCC and other government agencies, including the USDA, NTIA, and DOE, how the FCC’s Universal Service programs can continue to facilitate deployment and adoption, and the terms that should accompany government funding distributed through states and federal agencies.
2021 National Lawyers Convention
|Topics:||Civil Rights • Corporations, Securities & Antitrust • Culture • Politics|
2021 National Lawyers Convention
|Topics:||Culture • First Amendment • Free Speech & Election Law|
The Supreme Court in 1964 spoke of "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." That commitment has seemingly waned of late. Conservatives bemoan a new institutional "cancel culture" that chills heterodox views, with many now questioning limits on government’s ability to regulate the speech and associations of private parties like social-media platforms, corporations, and employers. Meanwhile, progressives complain that speech rights are, as one ACLU attorney put it, "more often a tool of the powerful than the oppressed" and should be subordinated to other values like equity, safety from harmful speech, and "anti-racism." Has something truly changed in recent years, and, if so, does it matter? Is the traditional view of free speech—freedom from government regulation—worth defending?
2021 National Lawyers Convention
|Topics:||Civil Rights • Corporations, Securities & Antitrust • International Law & Trade • International & National Security Law • Foreign Policy|
This panel will explore a suite of issues related to global companies that do business in China and the implications for national security, human rights, and the rule of law. Panelists will explore how companies that have supply chains or otherwise are active in China weigh human rights concerns (e.g., in Xinjiang or Hong Kong) against market access, as well as consider the dilemma companies face when they find themselves caught in the crossfire between U.S. and allies' human rights sanctions (e.g., Global Magnitsky) and Chinese retaliatory sanctions. Do American companies feel an obligation, apart from any legal mandates, to act in ways that advance U.S. national security or foreign policy objectives? With senior policymakers intently focused on these and related issues, is the private sector giving them sufficient attention?
2021 National Lawyers Convention
|Topics:||Federal Courts • Constitution • Philosophy|
Many would agree that originalism is now a standard when it comes to judicial philosophy. On this panel, a variety of judges will discuss how they 'do' originalism while sitting on a case. Furthermore, they will provide their views on whether and how advocates can best brief and argue cases along originalist lines.
2021 National Lawyers Convention
On September 11, 2001, at the age of 45 and at the height of her professional and personal life, Barbara K. Olson was murdered in the terrorist attacks against the United States as a passenger on the hijacked American Airlines flight that was flown into the Pentagon. The Federalist Society believes that it is most fitting to dedicate an annual lecture on limited government and the spirit of freedom to the memory of Barbara Olson. She had a deep commitment to the rule of law and understood well the relationship between respecting limits on government power and the preservation of freedom. And, significantly, Barbara Olson was an individual who never took freedom for granted in her own life, even in her final terrifying moments-her inspiring and energetic human spirit is a testament to what one can achieve in a world that places a premium on human freedom. Solicitor General Theodore B. Olson delivered the first lecture in November 2001. The lecture series continued in following years with other notable individuals.
2021 National Lawyers Convention
Eugene B. Meyer: Good afternoon. I want to welcome you all to the 20th Annual Barbara Olson Memorial Lecture. I am Eugene Meyer, President of The Society.
This memorial lecture series started, as many of you know, shortly after 9/11, and Ted Olson’s inaugural lecture reminded us of what it means to be an American and how our legal tradition is part of our identity as Americans. That reminder only gets more important every year. We want the lecture series to remind lawyers of it, so they foster legal principles that advance individual freedom, personal responsibility, and the rule of law.
And I do -- with this being the 20th anniversary, I want to give the other lecturers who’ve included: Justice Scalia, Chief Justice Roberts, Vice President Cheney, Judges Ken Starr, Robert Bork, Ray Randolph, Edith Jones, Doug Ginsburg, Dennis Jacobs, Jeff Sutton, and then Judge, now Justice, Neil Gorsuch, former Attorney Generals Bill Barr, and Michael Mukasey, former White House Counsel Don McGahn, Peter Thiel, John Allison, and Senators Tom Cotton, and Ben Sasse -- quite a group.
Anyway, that brings us to today’s lecturer, which could not be more appropriate. This series has been remarkably successful for 20 years. And for years before that, Ted and Barbara hosted a summer bar-b-que at their beautiful house for our student chapter presidents, which drew hundreds of prominent attorneys in addition to those students and helped encourage those chapter presidents to build our chapters, and through that, build The Society and encourage many more to be involved. I’m sure some of those chapter presidents are probably in the audience today.
Then there’s also Ted’s strong and consistent defense of free speech, including repeatedly explaining to reporters who are doing national stories on The Federalist Society that The Federalist Society—unlike, say, the American Bar Association—never told Ted what to think.
I could give you a lot of Ted’s bio, but I think what we want to do is hear from Ted. I simply want to say you’ve done a great deal for us, Ted. And having this lecture in Barbara’s honor has been a highlight. We are so honored to have you deliver the 20th Annual Barbara Olson Lecture. Ted.
Hon. Ted Olson: Thank you. Thank you. So long as you keep that up, it’ll be that much longer before the cocktail party.
Well, it’s a great, great privilege to be a part of The Federalist Society and to be participating in the Barbara Olson traditional lecture.
On a clear and sunny September 11, 20 years ago, the world we had been living crumbled, and time seemed to come to a stop. Unlike December 7, 1941, when the full force of Japan’s Air Force launched a surprise attack on a far away Navy base, this time, a mere 19 individual zealots armed with hate and with little more than box cutters, executed a massive, coordinated, and crippling attack on our people, our government, and our institutions. They exploded, highjacked commercial airliners packed with civilian passengers into America’s commercial base in New York City and the nerve center of our defense establishment at the Pentagon a few miles from here.
Had it not been for the towering heroics of a few brave passengers, one of their highjacked planes would likely have hit the Capitol and killed hundreds of members of Congress. Thousands of individuals on those flights and occupying those structures were murdered, maimed, and horribly burned that day. New York’s commercial center and the command center of our national defense were reduced in a single morning to smoking rubble. Wrenched abruptly from our complacent, comfortable bubbles, we came face to face that day with a vulnerable, fragile, and defenseless future – not from an attack by a warring nation, but from a tiny collection of determined fanatics.
The gut-punch reality was hard to accept, but we had to. The world was populated by thousands more like them, similarly motivated and equally capable of horrible devastations with nothing to lose. One of our own, Federalist Barbara Bracher Olson, was one of the victims that day as she headed for Los Angeles on American Airlines Flight 77.
Terrorists could not have selected a more quintessential American victim. She was a Texan Catholic who had put herself through a predominantly Jewish law school in the heart of New York City. She’d declined a lucrative job at a prominent New York law firm to come to Washington in order to fulfill her long-standing ambition to be at the center of the nation’s political world. The Federalist Society was a dream come true for Barbara. She loved the rough and tumble of robust debate bursting with ideas, energy, passion, and enthusiasm. She persuaded the Dean of her persuasively liberal law school to allow her to form the first Federalist Society Chapter at Cardozo Law School.
And immediately after law school, she thrust herself into Washington life becoming, in rapid succession, a lawyer in private practice, an Assistant United States Attorney, a top congressional investigator, Deputy Solicitor General of the House of Representatives, General Counsel for the Senate whip, author of two best-selling books about the Clintons – not favorable, I must say [Laughter], and a regular and remarkably successful political and legal commentator on national television.
Barbara saw, in The Federalist Society, a reflection of herself. She was a passionate believer in individual liberty, private enterprise, and limited government. She had an insatiable appetite for ideas, debate, and intellectual jousting. Barbara enjoyed mixing it up on virtually any subject, and she was very, very good at it. She was outspoken, articulate, and, it must be said, brash. She could, and would, take on anyone, in any venue, on any issue with little or no advanced notice. She was quick and had a rapier-like wit. I told her once that some people thought she was opinionated.
She thought that was a great compliment.
Of course, she had opinions. She had very little time for anyone who didn’t have opinions. But she debated with passion, not anger, never mean-spirited or unkind. She delivered her thrust with a flip of her long blonde hair and a mischievous and contagiously radiant smile. Her adversaries liked and respected her but feared her at the same time. Barbara was a fighter until the very moment when the terrorists extinguished her life. She somehow managed to reach out to me by phone from her doomed flight as it was being highjacked. Knowing, because I told her—I had to—that two other highjacked planes had been flown into the World Trade Center Towers in New York, she sought, in those last moments, advice as to how she could save herself and her fellow passengers. Had she been on that plane in Pennsylvania, I believe with all my heart that she would have joined those brave souls who gave their lives to take that plane down, rather than letting it continue to fly into the heart of Washington.
Barbara loved being a part of The Federalist Society: the debates, the people, your energy, your principles, and of course, your convictions. You populated and enlivened the world of ideas and placed your opinions, arguments, and contentions on the line.
As Gene said, Barbara co-hosted with me summer gatherings of student Federalists in our backyards every year. Indeed, the concept was originally her idea. We started in 1990 or ’91 with a few summer students, Washington lawyers, and a few judges. She sought to create networks and mentorships for young Federalists. I think our first event involved something like 30 people. By the time Barbara was murdered, the crowds had come to exceed 500 in our backyard, and it kept growing and growing until Gene finally put a stop to that and moved the venue to a more commonplace like the Supreme Court. [Laugther]
And in those backyard events for these young students—included lawyers and judges and people from Washington—luminaries such as Robert Bork, Clarence Thomas, Nino Scalia, David Sentelle, Larry Silverman, Dick Leon, Steve Williams, Doug Ginsburg, Danny Boggs, Spence Abraham, Sam Alito, Chuck Cooper, Paul Clement, Boyden Gray, Lee Liberman Otis, Ray Randolph, Lillian BeVier – the list goes on and on. I had to stop. But I cannot forget the thrill in your young faces when you came face to face with Bob Bork or Clarence Thomas or Nino Scalia.
To this day, I encounter lawyers from all over the country, including members of Congress, members of the cabinet, cabinet secretaries, high-level public officials, prominent lawyers who attended those summer parties as young students. They can’t wait to tell me what an inspiration that afternoon was for them. Many of you are here tonight. This is just a part of Barbara’s legacy.
This speech is called the Barbara K. Olson Memorial Lecture. Although I never really cared for that term "lecture"—it sounds too much like a colonoscopy [Laughter] or any recent speech by President Biden [Laughter]—so I prefer to think of this as a remembrance. So in preparing for this evening, I thought I might try to channel Barbara and what she might think and say about the state of politics and society in America today had her life not been so brutally ended on September 11. I have no doubt that she would have had a lot to say to us, so I will try to limit these imaginary insights to just four subjects.
First, America’s stature and standing in the world and in the hearts of its people. Barbara, like her fellow Texans, loved this country and was proud to be an American. She believed in an America that stood tall, was respected by its citizens, allies, and other nations, feared by its enemies, abided by its commitments, and protected the lives and rights of its people. The America that gave birth to the individuals about whom Tom Brokaw coined the term “the greatest generation.”
After 9/11, America came together and demonstrated its unity in resolve and resilience. We proved to one another and to the world that we could not be defeated by terrorism, however horrific and devastating the attack might be. President Bush and Vice President Cheney joined in inspiring the American people to rebuild our transportation industry, our economy, our defenses, and our united spirit. We mobilized our forces to attack Al-Qaeda and the Taliban. We vowed never to forget and never to forgive the brutal savages that sheltered terrorists, spawned terrorism, enslaved and debased their own people—particularly women—and wantonly took the lives and futures of thousands of Americans. Barbara would have been proud of what we as a country accomplished, particularly in Afghanistan, in isolating and punishing the Taliban.
She was a fierce advocate for the rights of the oppressed and disadvantaged, helping to form, among other things, the Independent Women’s Forum to assist and advance the voices of conservative women in this country so that in future controversies, there would be a conservative voice when liberal women came forward to claim to speak for all the women in America. And even as a fledgling attorney, when lawyers of the State Department and the Justice Department were reluctant to do it, she volunteered to go to New York, and by herself, serve papers on the Palestinian Liberation Organization, expelling that terrorist organization from the United States. She was thrilled to do that.
Everybody said, “Are you okay? Is it going to be alright? Aren’t you afraid?” No.
So I could only imagine what Barbara would have thought if she had been here to witness the reckless, precipitous, and panicked withdrawal of our troops and personnel from Afghanistan this summer, abandoning its people, particularly its women, to the oppression of the Taliban, deserting the people in that country who had helped us hold the Taliban at bay for 20 years, and skulking away from hundreds of American citizens and many thousands of American supporters and friends. She can’t speak for herself tonight, but I believe I know what she would have felt when America turned its back on its own citizens, our allies, and those who had fought side by side with us, leaving tens of thousands of people in the hands of the very murderous fanatics who had facilitated her murder.
We have learned that our Marines were given a mere 30 minutes to pluck a few people out of thousands of Afghans who had been coming by bus, car, and foot for ten straight days assembling near the gates of that airport, standing knee-deep in sewage attempting to flee from the terror of the Taliban to whom we had abandoned control of their country. Twelves minutes into that desperate half hour, a suicide bomber detonated a device that killed 170 of them and 13 of our own servicemen and women. Thousands of helpless people were deserted and, for the most part, forgotten. What kind of nation does that? Certainly, not the America of Douglass MacArthur, George Patton, Dwight Eisenhower, or Ronald Reagan. The America that took on the Nazi Germany and Imperial Japan, an America that fought for its people in the Bill of Rights, that kept its promises, sent its military after the terrorists, respected and encouraged women and girls to be educated, and stood up to bullies, murderers, thugs, hijackers, and kidnappers.
Barbara would have been outraged, inconsolable that our nation had expended billions of dollars, sent hundreds of our soldiers to their death, and 20 years to defeat groups like Al-Qaeda and the Taliban and ISIS only to quit, lay down our arms, retreat in panic, and turn Afghanistan over to those very same people who have consistently proclaimed their hatred for America and Israel and who repeatedly vowed to destroy us. And she would have been astonished when we proclaimed to the world that our forthcoming surrender would be completed in time for September 11, dishonoring the memory of the nation of that national tragedy by capitulating to the same people who had engineered it. What a cruel mockery of the people murdered and crippled on September 11.
Phrases like “we will never forget” meant something in Barbara’s America. She would have seized that hearing these words uttered in the same breath as speeches bragging about the amazing success of our evacuation—the retrograde they call it—of our troops, diplomats, and those very few lucky enough not to be left behind. We were told when we announced that we would wash our hands of Afghanistan that this would not be another Saigon. The Afghan government and its armies would hold off the Taliban for months or more. And when the eminently predictable and sudden collapse did occur, putting the lie to these predictions, we were told that all Americans would be safely evacuated as well as our supporters. And then, of course, we stampeded out of our airbase in a panic in the dead of night without notice to our allies, leaving behind massive amounts of aircraft, vehicles, weapons, uniforms, and ammunition.
And we were so rushed to escape from the only remaining, barely functioning airport that we left thousands of humans standing in wastewater while issuing talking points about our great success in evacuating the people we did not forget. Again, you heard we will never forget, we will never forgive. How much accountability has there been for that public, humiliating defeat? None that I have seen. How much are we doing to affect the removal of the remaining abandoned Americans and tens of thousands of terrified Afghans? I haven’t heard much about that either. How much longer before the reenergized, rearmed, and diplomatically legitimatized Taliban, and the other Jihadist grouping in Afghanistan, attack America or Israel or Paris or Madrid or churches, synagogues, restaurants, playgrounds, or nightclubs? We hear about our over-the-horizon capacity to stop such terrorism. Does anyone believe that?
Second, Barbara would be astonished by our government’s unlawful, unilateral relinquishment of our southern border to armies of migrants from all over the world. A central tenant of a nation’s sovereignty is the establishment, sanctity, and protection of its borders and its citizens. Ensuring domestic tranquility and providing for the common defense are a nation’s obligations, so plain that they are asserted in the preamble to the Constitution and central to our existence as a nation. We seem to have rescinded that cornerstone of sovereignty. Tens, indeed hundreds of thousands of individuals are pouring into the United States, completely undeterred by our national government, in violation of our laws, overriding our ability to make reasoned decisions as to who can come into this country and threatening the safety and security of all Americans.
The invaders include, of course, decent, desperate, sympathetic people seeking asylum and freedom from poverty and corrupt and tyrannical regimes, but also human traffickers, smugglers of addictive poisons such as heroin and fentanyl, fugitives, and unvaccinated carriers of COVID-19 and other afflictions. We don’t even seem to be trying to distinguish among them. What other conclusion to draw than that the federal government has intentionally abrogated the principles of American borders and territorial integrity without the consent of the people and our elected representatives? We are being forced to accept and absorb millions of persons of all ages, backgrounds, and motivations without any systematic effort or ability to provide them with a humane integration, education, or opportunity.
Our government is now said to be negotiating the size of the bounty we will be paying to some of them. Naturally, they are met with resentment and hostility in many segments of the country because they have flouted our immigration laws with the complicity of our Executive. We cannot begin to handle the burdens this massive invasion creates for our local communities and neighborhoods, so our government either ignores or papers them over with public relations smokescreens and dishonest, evasive pretenses that this is not happening. If the United States cannot, or will not, control who enters this country, what does this do to our ability to enforce other laws? Indeed, what does that mean for the rule of law in any traditional sense? How can American citizens be expected to respect and obey the law if our federal government sanctions, indeed embraces, even rewards non-citizens who’ve entered this country in violation of our laws of entry and who acknowledged no responsibility to abide by any or all of our laws? This sounds fairly bleak, doesn’t it?
But I was trying to figure out what Barbara would say. That leads me to the third dreadful trend that we are witnessing throughout this country that Barbara would have abhorred. The lawlessness permeating and overwhelming our cities. Funding for law enforcement is being reallocated—that is to say, reduced dramatically—and law enforcement officers are retiring or quitting in droves. Increasingly, few sentient individuals are willing to enter a profession offering little beyond personal risks, meager compensation, and daily heapings of disrespect and humiliation.
Recently, district attorneys in all parts of the country, including particularly San Francisco, Los Angeles, and Chicago, are refusing to enforce laws or prosecute violators. Arrests are not being made. The criminals who are unlucky enough to be arrested are promptly being released—in New York, for example—to offend again, which they routinely, regularly, and frequently do. Shoplifters, vagrants, and drug addicts—although you can’t call them that—swarm streets and harass and intimidate businesses and vulnerable citizens. Stores are closing in the centers of our major cities because businesses cannot stop hordes of thieves from walking brazenly and arrogantly in and out with trash bags or suitcases full of merchandise.
Homeless encampments—whose occupants we are now told to refer to as the unhoused—have sprung up everywhere—if you went to Union Station last night, you saw it firsthand—in our streets, sidewalks, parks, underpasses, and subways, bus and railroad terminals, near schools, and even in airports. The streets of San Francisco, and other once livable and beautiful cities, are littered with needles, garbage, human waste, debris, and open-aired drug markets. People are being assaulted, panhandled, badgered, or attacked on the streets, coffee shops, sidewalk restaurants, on buses, subways -- bicycles are being stolen, car thefts and carjackings are becoming epidemic. Rates of burglaries, assaults, street crimes, shootings, rapes, and homicides are steadily increasing.
We once used the term third-world country to refer to some big-city neighborhoods. That has become an insult to the impoverished nations that do not have a fraction of the resources we do. Today, substantial segments of Philadelphia, Baltimore, Seattle, Portland, San Francisco, Chicago, New York, and Washington D.C. merit that description, only worse. How many of you can identify areas in your communities where you would not dare to go after dark or even in the daylight? And don’t answer that question. I know the truth of it.
The same local officials who have allowed this to happen with failed, mindless, feel-good policies are endlessly reelected to pursue the same policies. Barbara spent much of her life in Houston, San Francisco, Los Angeles, New York, and Washington D.C. She would, today, be profoundly depressed to see the decay and disintegration taking hold and strangling these and other cities because of progressive policies of apathy, virtue signaling, and disinterest by elected—for life, it seems—political officials. They say they are simply not enforcing small crimes, but when did an offense against our laws or our people become too trivial to enforce? These public figures seemingly don’t care about the victims of those crimes, which often can turn out to be very serious. How suddenly civility disappears when civil order disintegrates.
Fourth, Barbara was a passionate believer in robust, even fierce, debate. She would have been shocked at the cultural, societal shift that has occurred so rapidly in America, not only silencing but oppressing ideas, terms, names, phrases, even holidays in the name of the extinguishing triggers, microaggressions, sensitivities, and imaginary acts of discrimination. Not only must we watch what we say, but how and when we say it, and to whom we are speaking. I’m disregarding my own admonition, of course.
Failure to carefully, cautiously calibrate your speech can and will—as they say in the Miranda warning—be used against you. And the banter or silly, immature jokes you exchanged in high school can and surely will be deployed to condemn you 20 years later or 40 years later. I recall Barbara’s response to a study and report critical of judges and lawyers at a D.C. Circuit conference a few years ago castigating acts and words deemed demeaning to women such as interruptions, insufficiently sensitive questions directed towards women lawyers. Barbara rejected the notion that women couldn’t and shouldn’t be interrupted during oral arguments or subjected to hostile or otherwise mean questions in court.
She did not want, nor did she think, that women should be treated like fragile flowers or delicate china who couldn’t take it. Not only did she feel that women, just like men, could handle and prevail in a rough and tumble legal and social environment, but that believing and acting otherwise towards women was demeaning, discriminatory, and led to the view that women, especially women lawyers, were inferior, not tough enough. She hated that.
Barbara Olson would have been shocked to see that the 'woke' movement had come so far that even a statue of Thomas Jefferson would be removed from city government in New York, that holidays like Columbus Day and traditional Halloween costumes were either banned or attacked as cultural appropriations. I read just four days ago that the Newport News, Virginia School Board had designated the John Marshall Early Learning Center to be given a less odious name in response to a decree from Virginia Governor Ralph Northam, otherwise known only for admitting and denying that the picture of a person in blackface in his college yearbook was him. John Marshall, our longest-serving and most acclaimed Chief Justice, too toxic for his name to be on a public school.
When a speaker may be banned because of his or her views are unpopular; when street gangs are allowed to intimidate or shoot young children on the way to school; when a person harboring a dog may not be considered an owner but only a custodian; when a mother has to be referred to as a birthing parent; when the new James Webb Telescope calls for a new name because NASA Administrator Webb had been under Secretary of State 70 years ago in the Truman administration during a congressionally instigated purge on gay persons; when pronouns such as he or she become not only offensive but prohibited if uttered without consent; when those pronouns must become they or them; or when the leader of a decades old Feast of Lanterns celebrating the first Chinese woman to be born on the Monterey Peninsula must apologize for the parade and issue these words, “The harm I have caused as an unconscious white woman filled with white fragility and my own perfectionism;” and when The Federalist Society itself could be castigated because of less than popular views of some of its members, what have we become?
Barbara would have seen this as an assault on freedom, the stifling of dissent and unfavored views, and the constitutionalization of conformity, a step on the way to mind control, uniformity, a tyranny against individual liberty – everything that this organization stands for. She would have seen the systemic categorization of decisions, benefits, rights, promotions, and appointments based on race or gender as fundamentally un-American. She bristled when she was told that Texas females should refer to themselves as women, not think of themselves as girls. The more someone tried to intimidate Barbara because of what we now call un-woke speech, the more she would have used it.
[Laughter and Applause]
But I want to leave you on a little lighter note. I inform you -- I must inform you, and I am happy to inform you that The New York Times is coming to your rescue.
In last Sunday’s paper, apparently shocked by the November 2 elections, The Times published a collection of pieces—maybe some of you saw this—with suggestions of how America, as they put it, can snap out of it and revitalize and renew the American spirit. Among their suggestions—and I’m not making this up—you would have been gratified to see were proposals to eliminate citizenship and all age limits on eligibility to vote -- all age limits on eligibility [Laughter]—parents can vote for their newborns—to erase all student, medical, and rental debt, make international law part of the American law, replace the stars and stripes with a monochrome—they have a picture of this—a monochrome gray flag, and, this is the best part, create multiple states from California, Texas, and Florida. There you have it. The simple answer to all of our problems: expand the franchise to include infants and anyone else who wants to vote, abolish debt, gray wash the American flag, and give California 12 Senators.
If Barbara were speaking to you this evening, she would have lamented at what we have done to our citizens here and abroad, lawlessness in our communities, the widespread surrender of our national respect and integrity. She would weep but also rage. She would not be silent. I am certain of that. She would be engaged, fighting, speaking out, organizing, demanding a return of our national integrity and domestic order and safety, and goading those who remain silent in the face of these developments.
Of course, she would be encouraged by the involvement of Federalists and like-minded Americans to stand up against these weaknesses, these trends, this disintegration. She would not let us give into apathy, malaise, helplessness, and cravenness, which we are now seeing all around us.
So thank you for honoring Barbara with this lecture series and for showing up in such robust numbers for the event every year. Barbara cannot be here physically to participate, but her spirit lurks in the conference rooms and hallways of every Federalist Society meeting. Thank you.
Eugene B. Meyer: Thank you, Ted. We continue to miss Barbara, but that was a wonderful remembrance, and thank you so much. Once again, thanks to both you and her for all you’ve done to help build The Federalist Society. We really appreciate it.
I want to just close with a couple of very basic things. One, our reception for those who’ve registered for it, is across the hall. And I also want to announce, we’ve been doing these videos, and we have our first, sort of, Federalist Society film festival at 7:30 tonight in the Chinese Room, which is right back -- right down that way. So thank you all very much. I appreciate it. Take care. Goodnight.
2021 National Lawyers Convention
FedSoc Studios Showcase:
This year we are proud to announce our first-ever FedSoc Studios Showcase, an evening highlighting the best of our five years of FedSoc Films! Join us after the Barbara K. Olson Memorial Reception on Friday night, November 12, at 7:30 PM for drinks, popcorn, and FedSoc original movies! Local beer & wine will be served.
7:00 PM | Doors Open
7:30 PM | Showcase Introduction
7:40 PM | Film: Taking Poletown: A Community’s Fight Over Economic Justice & Eminent Domain
8:10 PM | Remarks on History of FedSoc Films
8:15 PM | Film: American Craft: What Beer Can Teach Us About Well-Crafted Laws
8:25 PM | Film: Roe v. Wade: A Legal History
8:50 PM | Film: Fashion & Intellectual Property
9:05 PM | Trailer: They Say It Can’t Be Done
9:15 PM | Film: American Cincinnatus: George Washington Lays Down His Sword
9:30 PM | Concluding Remarks
2021 National Lawyers Convention
|Topics:||Corporations, Securities & Antitrust • Culture • Education Policy|
The life of law school Deans and university administrators have always included responding to various demands from students and faculty. In recent years those demands include attacks on the school for failing to address racist behavior and patterns, sexual harassment and the mistreatment of gays and other minorities. Over the last couple of years those demands have significantly increased in quantity, volume and force. At the same time corporate management, especially across Fortune 500 companies, but by no means limited to them, have experienced similar pressures. Most recently, we're beginning to see pushback on behalf of outspoken students on free speech grounds, accused predators with due process claims, and others on equal protection grounds. How has management handled these pressures both in academia and in the corporate world? How should they? This roundtable includes those who have dealt with these issues—is some cases very recently and in others from a few years ago.
2021 National Lawyers Convention
|Topics:||Environmental & Energy Law • Fourth Amendment • Property Law|
Since the Founding, the extent to which the public power of eminent domain may be used by, or for the benefit of, private parties, has been a subject of intense debate. Time and time again, the U.S. Supreme Court has considered cases testing the Fifth Amendment’s guarantee that "private property [shall not] be taken for public use, without just compensation." U.S. Const., amend. V. Over 15 years ago, in the landmark case of Kelo v. New London, the Court upheld the exercise of eminent domain to transfer private property from private individuals to other private entities. The decision – controversial from the outset – prompted deeper questions about the extent to which the Constitution allows for eminent domain for "public purposes" even where the action advances the economic interests of private parties over others. But how lasting is this precedent? In a recent dissent from the denial of certiorari in Eychaner v. Chicago, three justices voted to revisit Kelo, two of them expressly calling to overrule it. Since Kelo, the U.S. Supreme Court has continued to review eminent domain and other cases, raising significant property rights concerns – often involving complex questions at the intersection of private and public power.
Most recently, in the 2020-2021 term, the U.S. Supreme Court heard three cases dealing with the intersection of private and public power in the eminent domain context:
For this panel, a distinguished lineup of speakers will discuss the intersection between public and private power in the eminent domain context. The panel will focus on eminent domain’s history, the implications of originalism for understanding the extent and use of that power, recent Supreme Court rulings on these topics, and the likely subjects and issues for review in future cases, among other things. As part of this discussion, the panel will illuminate the constitutional, legal, economic, and philosophic principles and considerations that help to inform perspectives on this important topic of public versus private power in the realm of property rights.
2021 National Lawyers Convention
|Topics:||Education Policy • Professional Responsibility & Legal Education|
For many years, the U.S. Department of Education has recognized the Council of the American Bar Association Section on Legal Education and Admissions to the Bar as the accrediting organization for law schools. The importance of that function cannot be overstated. For nearly every state, a J.D. degree from an ABA-accredited law school is required to practice law. To become accredited, a law school must comply with the standards contained in the ABA Standards and Rules of Procedure for Approval of Law Schools. In May 2021, the Council of the ABA Section proposed a set of accreditation standards that, among other things, would require law schools to "take effective actions that, in their totality, demonstrate progress in (1) Diversifying the students, faculty, and staff; and (2) Creating an inclusive and equitable environment for students, faculty, and staff." An interpretation of that provision stated, "The requirement of a constitutional provision that purports to prohibit consideration of race, color, ethnicity, religion, national origin, gender, gender identity or expression, sexual orientation, age, disability, or military status in admissions or employment decisions is not a justification for a school’s non-compliance." The school would have to show "effective actions and progress . . . by means other than those prohibited by the applicable constitutional or statutory provisions." In addition, law schools must "provide training and education to law students on bias, cross-cultural competency, and racism: (1) at the start of the program of legal education, and (2) at least once again before graduation." The Council has since withdrawn the proposal for further study, but it may reappear.
Our panel of experts will discuss the degree to which the ABA’s proposed new policy represented a change from its prior practice; if it was a change, how it came about, including any arguments for or against it; whether it is justified and consistent with the accrediting role; and, if it is not, what steps, if any, might be appropriate to take.
2021 National Lawyers Convention
|Topics:||Constitution • Second Amendment • Supreme Court|
The U.S. Supreme Court famously decided many Second Amendment cases in its Heller and McDonald cases. Yet much remains uncertain. In its first significant Second Amendment case in ten years, the Court is poised to decide the extent of citizen rights to carry firearms outside the home. Our panel will discuss the oral argument (scheduled for November 3), the merits, the procedure, as well as possible outcomes.
2021 National Lawyers Convention
|Topics:||Constitution • Corporations, Securities & Antitrust • First Amendment • Security & Privacy • Separation of Powers • Free Speech & Election Law|
RESOLVED: Concentrated corporate power is a greater threat to individual freedom than government power
2021 National Lawyers Convention
"Science" as a concept enjoys the trust of the public. Indeed, some make "I trust the Science" a centerpiece for their appeal to the voting public, and this evidently has had some success.
By contrast, others in the scientific community stress that scientific methods explicitly exclude "trust". The noted physicist Richard Feynman remarked that "science begins with the distrust of experts". Instead, process in science relies on an "ethic" of impersonal objectivity, respect for data, self-questioning, a willingness to stand corrected, and open discourse. Its methods involve constructing models for reality that best fit objective assessments of available data, followed by a search for data that might contradict those models. Scientists are therefore (supposed to be) anti-advocates, willing to concede when their models were wrong; the most successful scientists even enjoy conceding, as it means that knowledge has advanced.
However, scientists, being human, are inherently imperfect practitioners of scientific methods. Historians document many examples where scientists have advocated their own (wrong) ideas over others simply because they were their own, obstructed opposing points of view, and otherwise behaved as 'politically' as in any other field of human endeavor. However, the process and its "ethic" has historically allowed models for reality to improve, and those improvements are known by the technology that has emerged based on them. As one example without science, improvements in civilized transport advanced haltingly over millennia. With science, citizens may now buy tickets to suborbital space flight.
Consequently, public policy decision-makers often rely on science (or at least they say they do) when making laws and regulations in many areas, including economics, criminal law, environmental regulations technology and bioethics.
However, the law is in many ways anti-science. Scientists, practicing their methods, commit to seeking out and weighting more heavily data that oppose their theory; they are (supposed to be) anti-advocates. In contrast, clients hire lawyers expressly to be their advocates.
This creates a natural tension when scientists are called upon to advise public policy. Many who call themselves "scientists" are willing to participate as advocates in public policy. This has been shown clearly in fields like anthropogenic climate change, economic stimulus packages and, most recently, in the management of the COVID-19 pandemic.
How should we as lawyers assure that science is used properly in the public space, to make policy conform to reality, and not for political goals?
The panel will address two areas with this as background:
2021 National Lawyers Convention
Judge Laurence H. Silberman will be delivering remarks on "The Job of Attorney General—A Historical Perspective."
2021 National Lawyers Convention