A Seat at the Sitting - February 2023

Nathan Kaczmarek:  Good morning. Happy Mardi Gras or Paczki Day to those who celebrate. Today, we are pleased to host another episode of our Seat at the Sitting series. Even though it’s the 21st and oral arguments began this morning, this webinar is designed to preview the February Supreme Court docket in 90 minutes or less. I’m Nate Kaczmarek, Vice President and Director of Practice Groups. Per usual, please note that The Federalist Society doesn’t take any positions, and all opinions belong to our guests. Today, we’re delighted to have Rob Driscoll moderate our conversation. Rob, how are you?

 

Robert S. Driscoll:  Doing great this morning, Nate. Thank you.

 

Nathan Kaczmarek:  Very good. We are looking forward to today’s cases and our presenters, and we’re glad Rob could join us. Robert S. Driscoll is a shareholder in Reinhart law firm’s Labor and Employment Practice. He previously clerked for the Honorable Diane Sykes of the U.S. Court of Appeals for the Seventh Circuit in Milwaukee. His law degree is from Notre Dame Law School. He holds a Master of Politics from the University of Dallas, and his undergrad was at Hillsdale College. Go Charters. Full bios for Rob and all our guests are available on our website and the promo emails you received for today’s program.

 

In a moment, I will hand it off to Rob. Once the group has reviewed the next cases, we’ll go to audience Q&A, so audience, please prepare your questions for our panel. Questions can be submitted via the Zoom Q&A function. We’ll answer as many of them as we can. With that, welcome. Rob, the floor is yours.

 

Robert S. Driscoll:  Well, thank you so much, Nate, really appreciate the invitation here and the opportunity to hear from our speakers firsthand in person. I’ve been involved with The Federalist Society since law school, and I’m glad to continue that association. With that being said, you’re not here to see me. You’re here to see our panelists, and we’re going to start with a good one—and they’re all good—but we’ll start with Attorney John Richter who’s a partner at King and Spaulding where he defends companies and individuals under investigation by the federal government. Attorney Richter previously served as the U.S. Attorney for the Western District of Oklahoma and as the Assistant Attorney General in the Department of Justice in the head of the Criminal Division. And, Attorney Richter, you’re here to speak to us today about Dubin v. the United States. So please, the floor is yours.

 

John C. Richter:  Well, great. Thank you, Rob, and thanks for having me here today. So Dubin v. United States, which is pending before the Court and will be heard -- argument will be on the 27th, concerns a criminal statute—Title 18 United States Code Section 1028—which provides a two-year sentencing enhancement essentially for aggravated identity theft. And the definition in the statute and I think the legislative history of the statute suggested that this was really about aggravated identity theft, but the actual plain language simply reads “knowingly transfer, possess, or use without lawful authority by means of identification of another person during and relation to certain predicate offenses.” Those predicate offenses are any fraud statute, fraud-related statute, also Title 18 U.S.C. § 922(a)(6), which relates to false statements in connection with the acquisition of a firearm and also immigration, citizenship, and nationality related predicate criminal offenses.

 

So at a high level, what’s presented to the Court in the Dubin case is whether a person commits aggravated identity theft and qualifies, therefore, for this two-year sort of mandatory minimum sentence and enhancement when the offender uses someone else’s identifying information in any manner while committing a predicate offense. In particular, the issue before the Court comes up in a case involving healthcare fraud. And the submission of claims to the Centers for Medicare and Medicaid Services for services that were not provided but which claims identified individuals in the claims and therefore made use of someone’s name and certain other identifying information in the submission of the claims. What I think is really intentioned here is a general belief at the time of the passage of this statute that this was really designed to deal with kinds of aggravated identity theft and not simply an enhancement to every essentially healthcare fraud case that might be brought.

 

The courts have struggled with the word use in this particular statute at the Court of Appeals level. They’ve essentially had to -- have tried to find ways to construct this statute and construe the plain language of the statute in ways to avoid having this two-year statutory, mandatory minimum enhancement essentially apply to every single claim that ever gets submitted to the federal government wherein an argument could be made that fraud was had. The cases in the lower courts have sort of split generally into two different camps. One were courts that have limited the scope of Section 1028 to bills for services that were not provided, so-called made up billing cases. Other courts have essentially conferred the broadest construction of the word use by applying it to basically any fraudulent submitted claim. These sort of get referred to as overbilling or the false billing cases.

 

And Dubin is essentially an overbilling case. In the case, which is up before the Court on certiorari from the Fifth Circuit, essentially the facts presented were that the defendants in the case were a married couple. They operated a -- well, excuse me, it was a licensed psychologist and a son. Dubin operated a psychology practice. His son operated the business side of the operations. They had essentially a Medicare -- they were a Medicare provider that became involved with an emergency shelter for children. Ostensibly, this psychology practice was to perform intake interviews and psychological evaluations for this emergency shelter for children. And to receive Medicaid reimbursement for these services, the practice had to certify whether a licensed psychologist performed the interview and the evaluation.

 

In fact, what ended up happening or is alleged and was the basis for the prosecution at trial was the allegation that the Dubins directed that the invoice be submitted at the rate as if a licensed psychologist had performed the services when, in fact, the services had not been performed by a licensed psychologist. Therefore, the bills were deemed to be inflated. And in October of 2018, a federal jury found the younger Dubin, the son, guilty of conspiracy to commit healthcare fraud, aiding and abetting healthcare fraud, and aiding and abetting aggravated identity theft, Section 1028, the statute at issue here.

 

The lower court heard this in a three-judge panel and then also heard it again in rehearing en banc in 2022. Essentially, the court upheld the conviction and found that the broader meaning of the word use applied. The majority found no textual basis really for concluding that Congress drew a distinction in Section 1028 between the use of identifying information to obtain benefits where no services were provided and the use of identifying information to obtain benefits by inflating the cost of services that were provided. In other words, the court essentially found that any time you have a false claim submitted to the government or an alleged false claim submitted to the government which necessarily has inherent in the submission of the claim identifying information of a person, it would trigger this aggravated identity theft enhancement.

 

There were dissents at the Fifth Circuit. And the dissent by Judge Costa really centered on the practical ramifications. This aggravated identity enhancement has not been widely thought of in the past as applying to every healthcare fraud matter at the criminal level. And, so, he wrote in dissent that the majority allows every single actor provider of payment healthcare fraud involving a real patient to also count as aggravated identity theft. After all, any payment form submitted to Medicare, Medicaid, or insurer needs identifying information for the patient. So he offered that a 1028 should require whether the patient consented to the use of identifying information and therefore wanted to import kind of a theft requirement here, that there was some actual -- they didn’t have the right to have the information to begin with rather than here were they presumably actually had the right to have the information. They had the right to submit a claim but, in fact, submitted an inflated claim based on the fact that the licensed psychologist had not actually done the evaluation. It was someone else not so licensed that had instead.

 

This brings before the Court really the thing that I think in FedSoc circles gets discussed all the time, and that is, what is originalism? What is statutory construction? How do you strictly construe a statute, and when should that be? As we know, while there is now a six circuit so-called conservative majority on the Court, how the justices see the construction of statutes and plain reading of the statutes is not uniform, even amongst those six, let alone amongst the complete Court. So we can expect that the Court is going to struggle with the practical reality of the breadth of this statute if it’s deemed to apply basically across the board, as the Fifth Circuit said. At the same time, that’s going to be in tension with the fact that if they should try to construe this somehow more narrowly, they’re likely to find that difficult to do based on the plain language of the statute.

 

The implications from an enforcement standpoint I think will be significant insofar as, if this statute is applied as the majority in the Fifth Circuit suggested that it was, this is going to add certainly to the leverage that the Department of Justice has in fraud related cases, raise the stakes. And where there are mandatory minimums in place, I know in the context of other areas of the law the leverage to obtain pleas and to obtain cooperation is maximized. And how you come down on that issue and whether that’s a good thing is a matter of policy and societal norms is obviously debated. But it’s a reality that this statute will become if upheld -- if the Fifth Circuit decision is upheld, become a means in every fraud investigation at the federal level to raise the stakes for punitive defendants and targets of criminal investigations.

 

Robert S. Driscoll:  Great. Thank you so much for that, John. If I could just ask one question about it, has either party argued that -- or I guess the defendant argued that this statute is unconstitutionally vague, or has that not been a focus of the arguments or the [inaudible 14:45]?

 

John C. Richter:  Yeah. They have not sought -- they’ve certainly sought to make arguments that it’s ambiguous and rule of lenity ought to apply. There are cases out there where courts have struck to do that, have strived to do that. I think that there have not been direct attacks on some of the predicate’s offense questions and definitions. One of the things that of course we’ve seen in the armed career offenders’ statute, history of the various cases that have gone before the Supreme Court under that statute, is the predicate offenses in and of themselves have been challenged, and the use of those as enhancements for that armed career criminal enhancement have been challenged. So we may see I think that would probably be the next step if this case is upheld and the Fifth Circuit is upheld.

 

If in fact the Fifth Circuit is overturned, I think it’ll be interesting to see how the Court construes the language, and that may take some of the pressure off the attacks on the predicate offenses. But I would suggest that the next front if 1028 becomes more commonly used is going to be attacks on the use of these predicates and the definitions therein as being overly broad, as not being necessarily proven to a jury, and therefore unconstitutional. So a good question and obviously probably teed up for future Court consideration.

 

Robert S. Driscoll:  Great. Thank you, John, again. And we’re going to move then to our next panelist, who is Karen Harned, who’s the President at Harned Strategies LLC. Previous to this stint, she served as the Executive Director for the National Federation of Independent Businesses at the Small Business Legal Center, a post she held for 20 years. Prior to that post, she was an attorney in Washington D.C. specializing in food and drug law where Attorney Harned represented small and large businesses and represented them before Congress and the courts, et cetera. As the executive director of NFIB, Attorney Harned commented regularly on small business cases, again in the federal and state courts. And, today, Attorney Harned is here to talk about two cases pending before the Court involving President Biden’s student loan forgiveness program. So, Attorney Harned, I’ll pass over the microphone to you.

 

Karen Harned:  Thanks for having me, Rob, and thanks everybody for joining us for this program. So, yes. I also should put a disclaimer together. I currently am chief legal officer for the Job Creators Network. That’s one of my foundation -- that’s somebody I’m working with. And we have supported the litigation I’m going to be talking about today. And, on February 28, the Supreme Court is going to hear two cases on the student -- President Biden’s student debt forgiveness program.

 

As we may all recall from the campaign, Biden had promised to address student loans and do a forgiveness program. And, so, last August, he announced this program that would allow for loans -- for anybody that made $125,000 or less individually—$250,000 or less as a couple—in tax years 2020 and 2021 to receive $10,000 worth of forgiveness on their student loans. These would be for the loans that the federal government holds, which they took over that program if you might recall I believe around in 2008. And then, the second group of folks is anybody, again, with those thresholds—$125,000 or less for an individual, $250,000 less for a couple—that have received a Pell Grant. They are going to receive $20,000 worth of forgiveness. But the price tag is at least $400 billion for this program.

 

And the Biden administration based its authority for doing it through what’s called the Heroes Act. It was a law that was enacted after September 11 attacks. And within it does say that when the president declares a national emergency, he can forgive -- waive certain requirements. And what the plaintiffs have argued in this is it was really more intended for military personnel. That was what was envisioned, not necessarily all people. But if you do look at the Heroes Act, the language is relatively broad on, once the president declares a national emergency, what he or she can do. That said, the Department of Education prior to the president’s announcement under the last -- I’m sorry -- under last administration, had specifically looked at whether you could do forgiveness under Heroes Act for student debt. It had a memo that said that they did not. So that’s background on how we got here.

 

In September, the six states sued the administration saying that this program was unconstitutional, that it was arbitrary and capricious but also that it was flying in the face of the president’s -- I mean, I’m sorry -- of the statutory construction that the president can’t take on the role of Congress. The major questions doctrine is what it’s known that was part of the West Virginia v. EPA case that came out the end of last term. And bottom line on that is, if the statute doesn’t say expressly that the administration has authority, they can’t use it especially on a program that has significant economic impact. And the states argued that this program definitely does.

 

The case that I’ve been involved with was filed in October, and it concerns two individual plaintiffs, student loan borrowers, who still have their debts. One of them, Ms. Brown, does not -- she’s still paying her debt, but it was commercially obtained. So it is not eligible for forgiveness under the program. Mr. Taylor, he would be eligible for the $10,000 worth of forgiveness but not the $20,000, and he argues that’s problematic because that distinction was made based on the income his parents carried when he was in school, not the income that he is making now, which is significantly lower than the $125,000 threshold. And they both argued that this program is flawed because the administration did not go through the proper notice and comment procedures that that administrative procedure act requires. They do. And if they had done that, they could envision -- you could envision a world in which both of these borrowers received money or received more money than currently is granted.

 

So with the first case, the states, they filed in Missouri. They base most of their stating on the fact that Missouri has this loan program that -- it is a very big loan program. The state has been administrating them because the government student loan forgiveness forgives so much debt that program would suffer in revenues—$44 million a year, I believe, is what they argued. And, as a result, that would hurt the state and the other programs that it’s trying to support. The administration counters that while they can make adjustments to their budget and this and also says they don’t even think MOHELA—that’s the name of the -- or the acronym, sorry -- Missouri Education Opportunity Higher Administration or something like that, sorry—it’s a long acronym that everybody messes up, including me—but, that said, that that’s a separate corporation and not part of the state. So that’s their back argument there. Then the other states—which include Nebraska, Iowa, Kansas, and South Carolina—assert that they have standing because it’s going to reduce their tax revenues. All of these states use the associated gross income to calculate taxes. And because of the law that’s on the books, any student debt that’s forgiven won’t be included in their income and that would reduce revenues.

 

The administration counters on that standing that that’s just self-inflicted. And then they also argue that the Biden administration program encouraged borrowers who were not eligible for student debt relief to consolidate their loans. And, as a result, the fees that the state agencies would get for servicing original loans are going to be reduced. The administration on that point counters that they made it clear that borrowers cannot become eligible for consolidating their loans. And that is an interesting point where I’ll stop before I get into the private plaintiffs. You know, I’m spending a lot of time on standing because if you recall when this program was unveiled, that was one of the biggest issues people have.

 

They thought, “My goodness, this sounds like a big overreach.” But then, when they started looking at who can sue, standing became an issue. So that is definitely going to be a focus of the arguments we’re going to hear on February 28. And, so, it'll be interesting to see, especially moving forward, how the Court reacts to the states’ arguments, especially because they’ve become so active moving in the past decade in litigation. And, so, yeah, their standing is going to be very interesting to see how the Court addresses that.

 

Similarly, the individuals came in and their standing argument actually deals with the procedural issues, the lack of procedure there is, that the Administrative Procedure Act was not followed, that according to the Higher Education Act, you should be going through -- the agency should be going through notice and comment and negotiated rulemaking before doing any sort of forgiveness. The administration argues, “Well, under the Heroes Act, you don’t have to go through those procedures. And also, the plaintiffs in this case, if they were to -- if the program was to be ruled unconstitutional, they would get no relief, right?” But the plaintiffs in the case argue, “Look, that’s not the analysis. Under Lujan, the analysis is, ‘Can you envision a world in which the program might have changed had the appropriate processes been followed, had the administration undertaken Administrative Procedures Act?’” And, indeed, I think that the plaintiffs in that case do a good job of saying absolutely.

 

In fact, the loan consolidation issue was something that up until, I think it was at least the beginning of September, the government was actively encouraging people to do. So you could have seen a situation where a Myra Brown, for example, would have received forgiveness. And as far as the thresholds, the whole procedure argument really does raise the fact that this whole program was done in the dark of night not even behind closed doors of Congress, but behind the closed doors of the Department of Education in the White House. And, so, there really was not an opportunity for anybody other than the top, top administrative law branch lawmakers to even weigh in on this program that’s going to cost everyone $400 billion at least. So that is the standing arguments that I think will definitely take up a bunch of time on the 28th. The states are going to go first at 10:00, and then, once that concludes, the private plaintiffs will go on. The cases were not consolidated. However, the government did do one set of briefs for both cases with extra words, and then the amicus were given the opportunity to file one brief in both sets of cases.

 

On the legal issues, once you get past the standing, this is really another major questions doctrine case, right? We had it starting with the OSHA vaccine mandate last year and then went to the West Virginia v. EPA, where it got a lot more meat on the bones I would say. And the argument really is that for a program of this size, Congress needed to expressly weigh in. Now, the government says that doesn’t -- oh, and the other big point, I think, that plaintiffs in both cases make is, look, Congress actually did consider what the president did in this program, and they said no.

 

So that is, I think, going to be a bit of a hurdle for the government as they move forward at arguments in this case. But the government says, “Look, major questions doesn’t apply here because there’s not your traditional mismatch.” By that, they say the text for the Heroes Act—and I’m sorry I did not have that earlier; I have it now—which says a president can declare a national emergency and by waiving or modifying any statutory regulatory provision in governing the student loan program. And, so, they think that that takes care of the text issue here.

 

However, again as the plaintiffs in the case argued, this is a $400 billion price tag. As members of Congress actually that were there when the Heroes Act was enacted put in their brief, “We never would have envisioned that it would have been used for every person to forgive student loans.” This was in direct -- I mean, it was -- the Heroes Act was passed on both sides by unanimous consent, I think. Or maybe they didn’t voice vote. But I mean, there were not detractors. Or, if there were, it was only a handful because this was in response to 9/11. Everybody was thinking of the military. Even the judge actually in the district court case in Texas had said that, look, an eighth-grade civics class, if they learned about the Heroes Act would not be thinking student debt forgiveness for all Americans. And I think that’s right honestly.

 

So, with that said, the cases -- oh, I should also say—I’m sorry; I got out of order here—how we got here was the Missouri -- from the state’s case, the Missouri judge said they did not have standing. It went up to the Eighth Circuit. The Eighth Circuit granted the state’s motion for preliminary injunction. The Supreme Court declined to overturn that and instead took the case on an expedited basis. Meanwhile, the private plaintiffs' case in Texas, they won below. The judge said that the Heroes Act did not authorize the program. The Fifth Circuit declined to stay that ruling for the -- hear the case on an expeditious basis. And, so, it was combined by request of the Supreme Court to be heard, I guess, separately but on the same day as the state’s case. So it’ll be really interesting. I think it’s going to be interesting to see what happens once again on standing but also how the major questions doctrine has gotten a lot of play in a year and two months and to see what happens with that issue moving forward.

 

Robert S. Driscoll:  Great. Thanks so much, Karen. Just one follow-up question for you concerning to make that major questions doctrine. Is there any argument that a $400 billion program is not a major question, or is it really just on the text of the Heroes Act and what it requires?

 

Karen Harned:  Well, I think the plaintiffs all argue that. And I think there’s been, if you look back at Brown v. Williamson and some other cases, when you’re looking that the Court has considered in the past in the lead up to what we now know as the major questions doctrine, the price tag does matter. And I think that that is going to raise some eyebrows, especially again since this Court definitely likes Congress to speak first and clearly, and they actually did on this issue. They looked at this program, and they did not pass it. But the president did it administratively. And I think that’s going to be a weakness for the government in this case.

 

Robert S. Driscoll:  Thank you. And I think we’ll move to our final panelist, and that’s Professor Adam Candeub, who is a Professor of Law and Director of Intellectual Property, Information, and Communications Law Program at Michigan State University. Professor Candeub has been on the MSU faculty since 2004, and prior to that, he served as an advisor to the Federal Communications Commission. Out of law school, Professor Candeub was an associate at the Washington D.C. law firm of Jones Day and before that served as a law clerk on the United States Court of Appeals for the Ninth Circuit for Chief Judge J. Clifford Wallace. Professor Candeub’s interests focus on law and regulation of communications, the internet, and technology, and that’s what he’s here to speak to us today about, specifically two cases involving social media platforms—Google and Twitter. And Professor Candeub, I think you’re -- it’s hot off the presses listening to the arguments in these cases. So why don’t you fill us in on what these cases are all about.

 

Prof. Adam Candeub:  Right. So I think that some of my prepared comments are going to be filtered through one half of the argument that I was able to catch. After 30 years—almost 30 years since its enactment—the Court will finally consider Section 230(c)(1) of the Communication Decency Act, which is of course the statute that supports the basic liability regime for the internet. The Gonzalez plaintiffs are families of slain victims of Paris, Istanbul, and San Bernardino terrorist attacks, and they claim that YouTube’s targeted video recommendations motivated the terrorists who murdered their loved ones. Section 230(c)(1) mirrors traditional liability for telegraphs and telephones. It protects internet platforms by liability caused by their user statement as this very brief, 26 words, stating, “No provider or user of an interactive computer service”—that’s the statutory term for people like Google—“shall be treated as the publisher or speaker of information provided by another user or internet” -- it depends, the internet providing content.

 

And, so, the rule on one hand is really quite simple. If you libel your friend on Facebook, Section 230(c)(1) protects Facebook and limits your friend’s recourse to suing you. But if Facebook wrongs the user with its own speech or action, Section 230(c)(1) does not apply. Now that, of course, is the -- in theory just looking at the statute. But, as the lower courts have interpreted this, what constitutes platform speech is really rather limited and that rearranging or reorganizing or all sorts of things that most people would consider platforms and actions have come under the (c)(1) protected rubric.

 

Therefore, what this suit presents is whether the algorithmically generated targeted recommendations on YouTube—“Would you like this video?”—constitutes information provided by another provider or the platform’s own speech. If the targeted recommendations are considered YouTube’s own speech, then Section 230 provides no legal protection from the suit. If the recommendations or information is provided by another, then 230 offers protection. Google, of course, argues that its recommendations are merely algorithmic, reorganized speech of their users and therefore comes under the protection. The plaintiffs argue that its recommendations are in fact its own speech and that it falls outside of the protection.

 

But this suit raises a more fundamental question. Because Gonzalez is the first time the Court will examine Section 230(c)(1), the Court may rule ,or will at least implicitly in some way, rule in how broadly that provision should be read. While some courts have read the provision correctly, limiting the protection to the content and to liability created by the content of third parties, not the platform’s own actions, as I said earlier, some lower courts have read it quite broadly. And numerous federal judges, most notably Justice Thomas, have recognized this unwarranted expansion. His statement in the malware bytes case—it was a denial of certiorari—correctly diagnosed how lower courts have expanded Section 230 protection in absurd ways without textual or statutory basis.

 

So Gonzalez therefore creates these two questions. We have on one hand sort of the more specific question, which is, are targeted recommendations speech of YouTube or of the people who are being recommended, the videos that are being recommended? And, more fundamentally, how is the Supreme Court going to interpret Section 230 to sort of frame this liability? Which the former question will have a rather limited impact, the broader question, which is of course of interest to a lot more people, could have a huge impact.

 

So how does Google come out on this? Well, the Gonzalez theory of liability seems outlandish. The plaintiffs’ claim that YouTube’s videos recommendations led otherwise peaceful individuals to view increasingly political, radical -- politically radical videos and made them into terrorists. The Gonzalez plaintiffs in effect posit that terrorists would have been mild-mannered Islamic theologians had not YouTube’s recommendations pushed them down a spiral vortex of political and religious radicalization. Now, Google wants to avoid even litigating that strained claim of causation, so it looks to Section 230(c)(1) as protection from that suit. And Google argues that algorithmic targeted recommendations are not its speech but simply reorganizes speech of others. Therefore, 230 bars its claim.

 

But Google also, of course, wants to make sure that whatever the Court decides about targeted recommendations, the Court answers the fundamental question about Section 230(c)(1)’s scope in a way that it likes. Google wants the sort of broad interpretation that some lower courts have embraced to include things that really are the platform’s own actions, our own speech. The position that Justice Thomas expressed deep skepticism about stay in place. And, as we all know, when Google gets worried, armies of lawyers, lobbyists, think tankers, foundation operationists, and academics get going. And, not to be too cynical, but I’ve been on the other side for several years. The list of amici writing to support Google in this does sort of reflect a riparian map of big tech money flowing through D.C. and the broader sea -- the D.C. swamp and the broader sea of American institutions.

 

So as for the broader question of (c)(1) scope, Google and many amici—which are, I think, almost 30—essentially argue that (c)(1) covers all the editorial discretion of a platform. Anything that an internet platform does concerning content on their platform is protected. And in addition to arguing that (c)(1) just protects editorial function or editorial discretion and therefore would eliminate any liability that Google would have for targeted recommendations, because that’s about speech of -- that’s about speech on this platform. So Google can recommend all the terrorist videos it wants, and it has no liability because recommending, displaying, suggesting is a fundamental editorial function, at least how Google would argue it.

 

And they also have a more subtle statutory argument that looks to the actual text of the statute but actually sort of misstates it in a very clever way very successfully, because I think a lot of lower courts have accepted this, this statement. And, so, what they say is that Section -- well, as initial matter, the liability in (c)(1) really involves three parties. There is the platform. There is the statement of another party, and then there’s the plaintiff. So in the classic example that we started earlier, your friend libels you, or you libel your friend. There’s you, your friend, and Google. You put the content on Google. Your friend cannot sue Google; it can only sue you. That’s what (c)(1) is meant to protect.

 

But what the courts have done -- what Google and the other platforms have been successful to do is say, “Well, look, what (c)(1) protects is that a plaintiff cannot bring action against a platform for liability that involves content of a third party.” Well, what if that content of a third party is really the plaintiff so that if you get kicked off of Google because you’re African American or you’re gay or what have you, or you put content on Google and alleged that you have been defrauded through its representations of promises? Courts have held that (c)(1) protects Google in those situations as well because it involves content of a third party. But that’s really not what the statute means or reads. It’s really third party. It means another person besides the plaintiff. That reading has been very successful. And, so, I think we’re really going to be looking to the Court to see whether they ratify it or whether they or not they will, as Justice Thomas had, take a more critical eye to this very expensive reading.

 

Just in looking at half of the argument—I was just able to catch half of it before we started—the Court seems, well, somewhat skeptical of the theory of the plaintiffs. They were very interested, I think, in drawing a line between what constitutes Google’s own actions, what constitutes its own speech, what constitutes its own decision making, and what content constitutes the content of the third party. We’ll see whether or not they draw that line, how they draw that line, or whether they try to avoid it.

 

Okay. So on the other side, and again, if you look at the amici, theirs was -- a small band of amici—including Senator Cruz, Senator Holly, the Texas Attorney General, the Center for Renewing America where I’m affiliated, and I also filed my own amicus brief—we have been urging a textual approach to the fundamental issue of Section 230 scope. 230(c)(1) means what it says. It limits Google’s protection for claims about -- for claims that arise involve causes of action that are contained within third party content. It doesn’t involve disputes between users and the platform. We shall see how we come out on the -- or how those people who are skeptical of the board reading of 230, how they come up on the specific question raised in Gonzalez about targeted recommendations. I think we’re sort of -- I think people are more Catholic in their views.

 

My personal view is that—and you saw it in the argument, at least the half that I saw—is that we don’t really know how these algorithms work. We don’t know whether they are truly neutral, whatever that means. We don’t know whether they reflect YouTube’s own personal judgments, political biases, or whether they’re simply like a chronological listing of tweets like Twitter used to do. From my immediate reaction, I would certainly hope that the Court doesn’t rule broadly without having a clear understanding about how these platforms control and manipulate content.

 

Okay. So what about the Gonzalez plaintiffs? How do they come out on the fundamental question of (c)(1) scope? And this is really interesting. I thought this was a big deal. Apparently, the justices did not agree. But the Gonzalez’s plaintiffs’ behavior has been very strange. Their petition for certiorari sought review of the traditional editorial function and interpretation of (c)(1). And then, in their merits brief, they changed the question to a more generic approach to the interpretation of (c)(1) that essentially agreed with Google’s interpretation. So I found that very strange in the sense that both parties are kind of unified in looking at (c)(1) with a potential of having very, very broad scope -- very, very broad scope of protection.

 

And then finally, even more oddly, the Google plaintiffs argued in a cert petition involving -- as an amicus in the cert petition involving the Florida social media law that section (c)(1) should be read very, very broadly. So they’re arguing their own case for a narrow reading of (c)(1) and yet are arguing for a very broad reading of (c)(1) in an amicus brief in a case in which they have no relationship to. So that leaves a lot of questions. We’ll see how it goes. I don’t want to -- I only saw half their argument, so I’m not certain. But certainly it’s all up in the air. I think from the discussion that I heard so far, the justices seemed somewhat confused and a bit uncertain about the scope of (c)(1) but also what was going on, how these algorithms work. So that’s it.

 

Robert S. Driscoll:  Thank you, Professor Candeub. One more question for you about these targeted recommendations. It seems to me that those are almost synonymous with the internet, and it seems to be part and parcel to social media. And, if those were to go away, I can see an argument that it would actually increase censorship or affect the internet poorly on one side. On the other hand, Google could be incentivized to increase its censorship of content on its platform. It’s worried about lawsuits against it if it loses immunity. Is that argument being raised, and if so, can it or will it have any effect on how the justices view the legal question?

 

Prof. Adam Candeub:  Well, that would certainly raise in the amicus briefs that has always been a favored argument of the platforms that if we don’t have complete liability protection, we’ll just go overboard and censor. We’ll see whether that would happen or not. I mean, it depends how the liability protections are drawn. On targeted recommendations, I certainly think that it depends how they work. Twitter used to have an old algorithm—it was an algorithm—which is the first -- the first tweeted tweets get on your feed the first. That’s a neutral algorithm, and I think they should have protection for that. It’s just a normal way of displaying information. But if their ways of displaying information actually reflect their own judgment, their beliefs that could be perceived as reflecting their own message, then they should have liability for it. They’re making decisions and how we view material, and I don’t see why they should be any different than newspapers. As you can tell, I have an entrenched position on that.

 

Robert S. Driscoll:  All right. Thank you. And just a quick programming note, I’m going to give a brief description of the final case in the argument section. But for our attendees, please feel free to use the Q&A function to submit any questions that you may have for Professor Candeub or Attorney Harned about the cases that they discussed, and we will get to them as soon as I’m done talking about the last case. And that last case is New York v. New Jersey. It’s a case that at least in my mind hasn’t gotten nearly as much attention as the cases we’ve discussed so far today, partly because it seems to be more regional interests between New York and New Jersey, the states, and the harbor specifically.

 

It’s actually an action in the Court’s original jurisdiction as between two states and concerns the Waterfront Commission Compact, which created a bi-state commission to oversee operations at the Court of New York and New Jersey, which was one of the busiest ports in the world, if not the busiest port. The commission is run by two commissioners, one appointed by each state. And its authority is rather extensive over employment matters at the harbor. It includes law enforcement authority, licensing and registration of the waterfront workforce, and levying assessments on port employers to support the commission’s operations. The compact between the two states was approved by the legislatures and then passed or confirmed or affirmed by Congress quickly in 1953. So it’s been around for a long time.

 

In 2018, however, New Jersey passed legislation repealing its authorization of the commission and announcing its intent to withdraw from the compact in favor of putting its state police in charge of oversight of that portion of the harbor within its territory. Interestingly, Governor Christie, who signed the legislation, had previously vetoed similar legislation believing that unilateral withdrawal from the compact was not allowed. In fact, that’s the issue here today in the case today or this week. The commission itself actually initially filed suit, and the district Court of New Jersey granted -- I guess enjoined the enforcement of New Jersey statute and eventually granted summary judgment to the commission. On appeal, however, the Third Circuit overturned, arguing that the suit was barred by sovereign immunity. The Supreme Court denied cert, and New Jersey announced its plans at the end of 2021 to move forward with its, I guess, dismantling of the commission. However, New York finally filed suit in the Supreme Court asking for a stay, which it received, and the parties have now briefed the merits issues.

 

And that merit issue is relatively simple. Does the Waterfront Commission Compact allow for states to unilaterally withdraw from it? New York, as you can expect, argues it does not, pointing out that the compact provides that amendments and supplements may be adopted by the action of the legislature of either state and concurred in by the legislature of the other. That was their initial argument that without a mutual agreement to disband the compact, it couldn’t be done unless Congress itself withdrew the authorization. They’ve later amended that argument and maybe focused a little bit more on the purpose of the compact, which was to fight organized crime and corruption in that multi-state area, which New York argues still exists, so the purpose of the compact still exists. And that belies any unilateral withdrawal.

 

Further, they say that the compact should not be read as an ordinary contract but rather as an act of Congress, more akin to a statute and that the framers’ intent of that statute in this case was that unilateral withdrawal is impermissible. In fact, the only two ways for the compact to end would be by both states agreeing mutually to withdraw or Congress withdrawing its authorization. New Jersey for its part relies on basic contract law and argues the Court must construe the compact silence on withdraw as a permission for unilateral withdrawal to occur, this being particularly true because that silence would preserve a state’s sovereign authority, New Jersey’s sovereign authority to govern its own territory, which it gave up partially through the compact and, absent an express statement that it could not unilaterally take back that authority, it can do so. New Jersey also, making a more textualist argument, says that the compact’s purpose really is meaningless other than as viewed through the text and structure of it, which those basic rules of interpretation allow for unilateral withdrawal.

 

Two interesting points about the amici in the case, the United States has filed a brief supporting New Jersey’s position, arguing that unilateral withdrawal is permissible. The commission itself has actually filed a brief supporting New York’s position, which is perhaps unsurprising because the only commissioner left is New York’s appointed commissioner, and that commissioner claims the authority and the power to file a brief and has done so supporting New York. Argument is set for March 1st.

 

So with that, we’re going to welcome any questions that you may have for the panelists on the cases. So please use the Q&A function on your screen to do so. In the meantime though, I’m going to ask either panelist if they would like to chime in with additional thoughts on their own cases or on the other cases that have been discussed so far. Okay. We have no comments from either panelist right now. But maybe, Karen, I can ask you a question about those standing arguments.

 

Karen Harned:  Mm-hmm.

 

Robert S. Driscoll:  There has been some discussion, I think Professor Dorf has written an article about standing and arguing that it’s impermissible in this case and perhaps some back and forth about whether there’s a distinction between standing to assert individual rights on behalf of a third party or standing in favor of structural protections in the Constitution and separation of thought powers. He would deny that there is, I guess, an ability for an individual who is not directly harmed to raise a standing argument using structural provisions rather than freedom of speech or right to bear arms or et cetera. Have you seen any of that developed in the actual briefing or the arguments of the party? Or has that been a focus at all of the Court’s decisions below?

 

Karen Harned:  It really hasn’t been a focus of the Court’s decision below. I believe in some of the initial briefing by the states, they were just saying as state sovereigns to protect their -- they were doing more, I would say, that kind of a broad argument. But I feel like as they’ve moved forward, they’ve really honed in more on the standing issues where they feel like they can show concrete harm. But I do think the point you raise is a good one in that this program was very, if I’m being honest, tricky to challenge because the government really did a good job of thinking ahead on the standing issues and how they could literally -- I mean, they must have boxed litigants out. And the idea, as you had referenced in your earlier question to me, that that could culminate in an executive official, really behind closed doors, rolling out a $400 billion program just sounds -- that can’t be, I think, under our Constitution.

 

So I feel like this may -- again, the Court did take one of the questions on standing. And I think it’s going to be interesting to see what they do with that because, I mean, they have watched this -- not just this administration but prior administrations get more and more aggressive in how far they’re going to stretch the law, especially in light of the fact that Congress isn’t really passing money, right? So I think this is an issue that’s going to come up more and more. Although it really -- in this instance I feel like both sides have done a good job of showing a concrete injury, this was a program that at first that the standing was really -- you got to illegal before you got to who could sue. Is that going to happen more? And I’m hopeful that the judges will be more -- justices will be mindful of that as they’re considering standing in this case. Because again, the agencies are going to act -- they’re going to take as much power as they can get. So I don’t think this is going to be the first time we see this kind of program rolled out where it’s unclear who would have standing to show injury.

 

Robert S. Driscoll:  Do you have a sense as to which way the Court may be leaning, maybe based on previous statements from the justices in other cases, both on the standing issue and then if they do get past it to the merits issue? It seems to me like the Missouri -- the state plaintiffs had a stronger argument there on standing. And if they can get over that hurdle, based on West Virginia v. EPA amongst others, they have a fairly good argument under the major questions doctrine.

 

Karen Harned:  Yeah. I mean, I actually think all the plaintiffs—this is me personally—should come out of the standing question well. I mean, the Court has been, I think, very generous with standing whenever states sue, right? I mean, it’s very rare these days, I feel like, where that is an issue that kicks them out, but maybe I’m missing something there. And then, we have Kavanaugh and some other administrative law geeks on there. And I think the APA, the case law on that is pretty strong where the injury is can you envision -- could you envision the program being changed had the agencies gone through the right procedures? And I think here, the answer’s absolutely yes. I’m bullish on the whole case. I definitely think on the major questions doctrine -- excuse me -- the idea -- I get that this statutory language may be broad.

 

But in context, context, a lot of the liberal justices like to talk about context a lot. I mean, this was done in response to 9/11. Military was all of the examples of people that could for which programs could get waived before the national emergency provision referenced military or people serving overseas. So I think that does muddy the waters and make that plus the $400 billion price tag plus the fact that Congress has taken a pass on this and literally taken a pass on this program all really weigh in favor of the plaintiffs on major questions. So it’ll be interesting, but it’ll also be interesting where will Kagan be on this and where will her questions be. And I’m actually very curious to see that moving forward because she does seem to be a longer-term thinker on a lot of these administrative law type cases or just administrative action cases. And, so, it’ll be interesting to see where she comes out.

 

Robert S. Driscoll:  We did have one question come in about the New York v. New Jersey case. If any of our attendees, participants have others, please feel free to, again, use the Q&A function. But the question concerned the role of organized crime in the case. Interestingly, in the briefing, New York makes it a point that the commission is still needed because crime and corruption are still out there and rampant within the commission, which in some ways is a double-edged sword because it kind of undermines the success of the commission and maybe highlights New Jersey’s point that a different structure is needed. Now, whether that sways the justices at all on their view of the compact and what it means and the background law, I don’t know. I kind of doubt it. But certainly that’s part of the issue here and seems to be what New Jersey sees as the issue having greater direct control over it.

 

I think another part of it that I found interesting was in the injunction briefing, there was a point made that whereas previously about 70 percent of the economic activity happened in the New York side, currently it’s more like 90 percent in the New Jersey side. So that may have a big role in New Jersey’s decision-making here because they want to have more authority since most of the economic activity is coming in their territory and territorial waters. So certainly, the organized crime aspect of it was a motivating factor behind it. I think some of the commentary I’ve seen has specifically referenced the movie On the Waterfront from the ’50s. This is about the era when the movie was released and that was at the forefront and speaks to why Congress probably so quickly asked the commission in the first place in 1953.

 

Okay, well, it looks like we don’t have any more questions from the panelists, so I’m going to pass it back to Nate Kaczmarek for a few final notes. Nate.

 

Nathan Kaczmarek:  Fast and efficient, I think that was an excellent preview. Our gratitude goes to John, Karen, Adam, and Rob. We hope to have the benefit of your expertise with us again soon. But one programming note, this afternoon at 3:00 p.m. Eastern, we have stood up a full report from the courthouse steps on this morning’s oral argument in Google v. Gonzalez with Eric Jaffe. Please visit our website for the webinar details and registration. Thanks everyone for a great preview. Have a wonderful day.