Courthouse Steps Preview: Murthy v. Missouri & NRA v. Vullo

[Music]

 

Chayila Kleist:  Hello and welcome to this FedSoc Forum webinar call.

 

      Today, March 12, 2024, we're delighted to host a conversation on the right Courthouse Steps Preview on two cases: Murthy v. Missouri and National Rifle Association of America v. Vullo.

 

      My name is Chayila Kleist, and I'm an Assistant Director of Practice Groups here at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today's program, as The Federalist Society takes no position on particular legal or public policy issues.

 

      And in the interest of time, we'll keep the introduction of our guests today brief, but if you'd like to know more about any of our speakers, you can access their impressive full bios at fedsoc.org.

 

      Today, we are fortunate to have with us as our moderator, Casey Mattox, who serves as Vice President for Legal and Judicial Strategy at Americans for Prosperity, where he advocates for a legal system that respects the rule of law and protects individual liberty. For over 15 years before joining Americans for Prosperity, Mr. Mattox's legal career focused on defending the First Amendment rights of students, faculty, families, healthcare workers, and religious organizations. He's litigated in 35 states and testified several times before congressional committees. I will leave it to him to introduce our guests for today.

 

      One last note, and then I'll get off your screens. If you have questions throughout the panel, please submit them by the question-and-answer feature found at the bottom of your Zoom screen so they'll be accessible when we get to that portion of today's webinar.

 

      With that, thank you all for joining us today.

 

      Mr. Mattox, the floor is yours.

 

Casey Mattox:  Great. Thank you, Chayila. And thanks to The Federalist Society for providing this opportunity. This is a preview of two cases that will be argued this coming Monday. And frankly, both of those two cases are probably cases that could have stretched the bounds of a single hour for either of the two of them, and we've got two to cover. So this is necessarily going to be very much a preview.

 

      And we're going to try to approach this with the mentality that we're going to tell you what you need to know so that, as you listen to the arguments, you'll be informed about the issues that you're going to be hearing, hopefully. We're trying to guess what we're going to hear this coming Monday and what's going to occupy the Court's time.

 

      But in Murthy v. Missouri, the Fifth Circuit held that some Biden White House officials, including Surgeon General Murthy -- which is not Murphy, coincidentally. But Surgeon General Murthy, the CDC, the FBI, and CISA violated the First Amendment when they coerced or significantly encouraged social media platforms to remove users or their content from the platforms.

 

      There are actually two consolidated cases in Murthy. The states of Louisiana and Missouri, principally, brought a lawsuit against a variety of federal agencies and officials for coercing social media companies to remove content, alleging that they, first of all, removed content from some of those state and local officials, but also because the states and the local officials also have a right to hear their constituents on social media.

 

      Consolidated with this case is NCLA's case, New Civil Liberties Alliance's lawsuit on behalf of a group of doctors: Dr. Bhattacharya, Kulldorff, Kheriaty, and Hines, who've all been blacklisted, shadow banned, deboosted, throttled, otherwise censored on social media platforms as part of what they allege is a year's-long censorship campaign by Surgeon General Murthy, the CDC, and other Biden administration officials.

 

      The Fifth Circuit granted a preliminary injunction in that case, and it was amended on panel rehearing. I'll read you the injunction so that we're kind of all working from the same background here.

 

      "Defendants, and their employees and agents, shall take no actions, formal or informal, directly or indirectly, to coerce or significantly encourage social media companies to remove, delete, suppress, or reduce, including through altering their algorithms, posted social media content containing protected free speech. That includes, but is not limited to, compelling the platforms to act, such as by intimating that some form of punishment will follow a failure to comply with any request, or supervising, directing, or otherwise meaningfully controlling social media companies’ decision-making processes." The Supreme Court has stayed that injunction.

 

      Questions presented in Murthy are whether the respondents have Article III standing, whether the government's challenge content—challenge conduct—transformed private social media companies content moderation decisions into state action and violated the First Amendment, and whether the terms and breadth of that preliminary injunction are proper.

 

      In NRA v. Vullo, the NRA argues that the New York Department of Financial Services and its superintendent, Maria Vullo, took a series of actions, from press releases to guidance to investigations, and threatened penalties against insurers regulated by the department in order to dissuade them from providing private insurance to Second Amendment advocacy organizations like the NRA because of their opposition to the viewpoint of -- their opposition to the NRA's viewpoint on gun rights.

 

      Vullo, the complaint alleges, succeeded in causing many New York insurers to drop the NRA by claiming that New York as an organization posed a "reputational risk" in the eyes of their regulator. The NRA argues that this targeted pressure campaign violated the organization's First Amendment rights. District court denied a motion to dismiss.

 

      The Second Circuit reversed and acknowledged that Vullo -- so dismissed the complaint. It acknowledged that Vullo plainly favored gun control over gun promotion and "sought to convince DFS‐​regulated entitles to sever business relationships with gun promotion groups.” But it nevertheless held that the complaint failed to state a First Amendment claim of coercion because those activities, in the view of the Second Circuit, were not explicit enough to breach the First Amendment. There wasn't quite the sort of quid pro quo mandate from the government that it was truly coercive.

 

      So the question presented in Vullo is whether the First Amendment allows a government regulator to threaten regulated entities with adverse regulatory actions if they do business with a controversial speaker as a consequence of the government's own hostility to the speaker's viewpoint or a perceived general backlash against the speaker's advocacy. Interestingly, our own—at least the Free Speech Committee's own—Eugene Volokh is part of the team representing the NRA alongside the ACLU, which is representing the NRA at the Supreme Court in this case.

 

      Joining me to discuss these two cases are Will Duffield of the Cato Institute and Robert Alt with The Buckeye Institute. Will is Policy Analyst with Cato's Center for Representative Government and has written extensively on jawboning, which is the issue we're discussing here today, including "Jawboning against Speech: How Government Bullying Shapes the Rules of Social Media." Cato filed briefs in both Murthy and in Vullo, although it's part of neither party in Murthy, which is a point we will probably come back to at some point alongside NetChoice and others.

 

      And Robert Alt is President and CEO of The Buckeye Institute, where he leads the organization's litigation efforts to protect First Amendment rights and defend other constitutional freedoms. Buckeye also filed briefs in both cases in support of the NRA and the states and private parties in Murthy.

 

      With all of that, I'm going to kick it off with both of them with their two openings, and then we'll go through a series of questions. And I would strongly encourage you to put your questions in the function here on the webinar because we should have a robust set of questions, I expect, on both of these two cases.

 

      I'll go to Will first, if you want to kick us off.

 

Will Duffield:  Yeah. I'll start us off with a lot of history about jawboning, which is really core to both of these cases, but I'll leave most of the argumentation about the particulars for later.

 

      So what is jawboning? Jawboning refers to informal government pressure aimed at an intermediary to allow the government -- or that allows the government to claim or exercise some power that it doesn't usually or legally have.

 

      In the one Murthy case, we're talking about speech intermediaries, online social media platforms, whereas in NRA v. Vullo, we're talking about banking or financial intermediaries. But in both cases, the government doesn't actually have the power to regulate speech or to decide whether the NRA can access banking institutions or not. However, it regulates or might have some power to interfere with the intermediaries that doctors speaking about vaccines or COVID and the NRA hoping to solicit donations and finance its activities need to rely on. So the government is seemingly gaining, gathering, usurping new powers by leaning on these intermediaries in order to do things that it isn't authorized to do itself.

 

      And this practice has been around in one form or another for a really long time. I love the opening bit in Robert's Buckeye Brief here in Murthy talking about Thomas Becket: "Will no one rid me of this meddlesome priest?" which, while it isn't traditionally jawboning, the knights weren't Becket's bankers; they certainly held a certain power over his life or death, as it turned out. But the king didn't go to Becket himself. He complained to these knights, and lo and behold, something happened.

 

      I think the example captures the often mafioso nature of jawboning. The term came into use to describe the activities of the World War II price-control board and actions by Presidents Kennedy, Johnson, and Nixon intended to combat inflation. Here, both the price-control board and the presidents have little formal power to set prices. However, they had other ways to punish firms which raised prices or seemed to be contributing to inflation in ways that frustrated the president or the price-control board.

 

      Commenters likened their threatening speech—their bullying—to the actions of Samson in the Book of Judges, where he claims, "I've slain a thousand with the jawbone of an ass." So folks were comparing the presidents' speech—their words—to the use of an ass's jawbone—not the most polite description of our presidents, but I think it did a lot of work to make this concept approachable. You can think about Samson waving the jawbone around; the presidents standing on the stage shouting at various businesses to keep from raising prices; and we have a sense of what's going on here.

 

      However, this jawboning, this informal government pressure, moved from being something that was mostly used in the economic financial realm, something targeted at prices—whether they be steel prices, foreign oil prices, that sort of thing—to targeting speech. And I think that's a really important part of this story because, even though jawboning had at times been applied to speech in the analog era, cases like Bantam Books or Mountain States, which we'll probably return to, it looks different in this digital realm.

 

      So, firstly, when the internet arrived, when lots of people began to come online, we faced a new deluge of what Eugene Falik deemed presciently "cheap speech;" calls it a deluge of cheap speech. There are suddenly lots of people who can come online and say all sorts of things that previously wouldn't have merited the cost of postage. And not everyone likes what people are saying; not everyone agrees with it. Terms like mis- or disinformation are thrown around to describe it. And in other countries, we saw new positive laws passed obligating either platforms to censor or just criminalizing new forms of speech. Things like Turkey's law requiring respect for Turkish culture, Germany's NetzDG.

 

      In the United States, thankfully, that didn't happen because we have very strong formal speech protections. However, that demand for censorship, frustration with all of this online speech didn't go away. Instead, it went into jawboning, especially when we, post-2016, couldn't reach a consensus about any changes in internet law. Lots of people seemed frustrated with the status quo, but in countervailing ways, so they couldn't come together to legislate something. Instead, they could individually—these politicians—we're talking mostly congressmen to start—go out and, on their own, attempt to persuade or cajole and threaten social media platforms to make the changes they wanted to see.

 

      But compared to analog jawboning, whether it's happening as the result of congressional pressure or some bureaucrat's missive, it's much harder to determine that jawboning has occurred or if a given platform's decision with respect to some user speech is the result of government action rather than mere platform policy. Back in the analog days, if—as in the Mountain States case—the phone sex line has been disconnected, you know it. You pick up. You ring it. You don't get any kind of dial tone. It doesn't go through.

 

      But today, online, if your tweet gets less engagement or if your views—maybe your followers don't like that sort of content, maybe you've run afoul of the algorithm, or maybe a government official has leaned on the platform to suppress your posts. This makes it a much more difficult problem to solve because it's hard to even figure out who might have standing to sue over this. Discovery becomes fraught and difficult. What communications from the government to the platforms might you have access to? And it becomes much messier and, I think, more resistant to a tidy judicial solution, but we'll get into more of that later.

 

Casey Mattox:  That's great. Robert.

 

Robert Alt:  Excellent. Well, thank you for having me here today. I just wanted to provide probably a bit of texture about the case and background, which will be helpful as we think about the concept of coercion and what that means in the current case.

 

      And so I was going to jump off where Will had mentioned that the anecdote from our brief about King Henry II, who was legally prohibited from taking direct action against Thomas Becket and famously protested, "Who will deliver me this turbulent priest?" following which, of course, Becket was soon thereafter killed by knights in Canterbury Cathedral.

 

      I would argue what happened in New York with the insurers and between the federal government and the social media platforms in terms of the government protests left even less to the imagination of those taking the government's punitive hints here. Indeed, it reminds me of the 1992 movie Sneakers, not quite the great literary work of A Man for All Seasons or sort of the -- but in which Ben Kingsley's character, upon confronting his longtime friend and now nemesis, muses, "I can't kill my friend." He then turns to his henchmen in the room and says, "Kill my friend." And just as the criminal law isn't so easily evaded by an order to kill, rather than doing the dirty work yourself, neither is the First Amendment so easily evaded by would-be censors.

 

      And so, providing a little bit of background on what it is that the government was doing in these cases, in Murthy, for instance, a White House official communicated privately—and the "communicated privately" is a significant issue and one I think that we'll be chatting about later—but they communicated privately with a social media platform and requested that they remove an account immediately, stating, "He could not 'stress the degree to which this needs to be resolved immediately.'"

 

      The government evaluated the platforms on how much measurable impact their moderation policies have in achieving the government's aims and demands that the platforms do better through stronger interventions. The government engaged in a pattern of demands for information followed by demands for action, evaluation of that action, and demand for stronger interventions when the platforms did not meet the government metric. This was a very comprehensive plan.

 

      But at a certain point, the government actors were dissatisfied with the degree of compliance in deplatforming individuals. And so, President Biden said that social media platforms were, and I quote, "killing people" by not acting on misinformation. A few days later, a White House official said they were reviewing the legal liability of platforms, noting that "the President speaks very aggressively about that because they should be held accountable."

 

      The pressure applied by the government—including threats of reevaluating Section 230 exemption—literally along the lines of, "That's a nice 230 exemption you have there. Wouldn't it be a shame if something happened to you? -- happened to it, as well as antitrust liability, led the social media platforms to respond with what the Fifth Circuit Court of Appeals found to be total compliance. The government dubbed a group of problematic influencers the "Disinfo Dozen," who, at the government's urging, were deplatformed across Facebook, for instance.

 

      In conclusion, the Fifth Circuit noted that "The Supreme Court has rarely been faced with a coordinated campaign of this magnitude orchestrated by federal officials that jeopardized a fundamental aspect of American life. Therefore, the district court was correct in its assessment. Unrelenting pressure from certain government officials likely had the intended result of suppressing millions of protected free speech postings by American citizens."

 

      And in Vullo, the New York Department of Financial Services, as mentioned before, issued formal guidance letters to every bank and insurance company which that agency oversaw—over 3,000—and met with regulated insurers behind closed doors. Once again—we see the confidentiality issue—to discuss compliance with what had been -- what has been described as a campaign to weaken the NRA, one which this campaign was made in some sense public by press releases and the like, both by that agency and by the governor denouncing the NRA.

 

      Vullo formally directed every bank and insurer to take prompt action and to consider their reputational risk of doing business with the NRA and other gun promotion groups because of their political advocacy, which was unpopular in New York. And of course, it was unpopular in part because of the government's statements against that particular organization. Now, this focus on reputational risk is very important given the agency involved, because failure to adequately take that into account and the impact that that could have on markets had in the past resulted in multimillion-dollar fines issued by that agency.

 

      Now, if this weren't enough to compel action, Vullo also promised leniency to the NRA's insurance partners if they cut off business with the NRA. This was because there was an insurance product -- an affinity product, essentially. Think about organizations that you may be a member of that offer insurance as a benefit. The NRA had contracts with insurance companies to do the same for those who carry a firearm for certain liability issues. There were some deficiencies that were found in this product that actually were found in a number of affinity products across the board. And so, essentially, the agency said, "Look, if you cooperate with us in dropping the NRA, then we'll go easy on you, not just with regard to this, but with regard to deficiencies, with regard to these other affinity products. She also extracted promises from three of the NRA's insurance partners never to provide affinity insurance to the group ever again, even if those products were fully compliant with New York law.

 

      And so, looking at both of these, you can see -- these were not mere suggestions. These were not -- I would say that this wasn't even getting to the level of strong suggestions. These crossed the level -- the Rubicon into coercion. And as I'm sure we'll discuss later, particularly in the pre-digital era in the Bantam Books case and others, the Supreme Court has been perfectly clear that regulatory agencies cannot coerce third parties to censor in ways that the government would be prohibited from doing directly.

 

      So, with that setting the table, I will go ahead and turn it back over to Casey.

 

Casey Mattox:  Thank you, Robert. So I think between the two of you, you've framed up for folks overall what these cases are about.

 

      I would encourage people again: If you have questions, put them in the Q&A function. I've got a few questions that I'm going to start kind of working through, but we would certainly love to be able to turn to yours, so put them there if you have questions.

 

      So to this point, Robert, you raised the Bantam Books case. I see this as—or at least one can see this as almost—especially in Murthy—the government saying, "Who will rid me of these turbulent tweets?" And so, what is the actual precedent that would be applicable here? What are the cases that are going to be significant in both cases, and what are the factors that we should be looking for the Court working its way through?

 

      So, Robert, since you just raised Bantam Books, I think that's probably a big part of the answer here. Can you give us a little bit more on how Bantam Books applies to the facts of both of the two cases?

 

Robert Alt:  Sure. So in Bantam Books, this is a case arising out of Rhode Island in which an agency that I'm trying to remember the exact name, but it dealt with morality and youth, had identified a list of books which they believed that bookstores should not be selling to minors. So they sent a notification to bookstores that they had made these determinations. They didn't actually require the bookstores to remove those books, but they did include some not-so-tacit threats. Actually, probably not as direct as what you saw in either of these cases, but they noted, for instance, that they had the authority—the regulatory authority—to make referrals to the Attorney General for prosecutions of violation of obscenity laws. And so, with that tacit threat, you saw bookstores taking actions with regard to stocking these particular books.

 

      The Supreme Court, in analyzing this, and circuits applying this test have variously described it as a three- or a four-prong test. But loosely speaking, the factors that the Court looks to in determining whether or not there is sufficient government coercion to create a First Amendment violation looks first to whether -- it looks to the authority of the government speaker over those that particular regulator is addressing, the content and purpose of the communications, and the effect of the government's conduct on its target audience.

 

      And if you take a look at those factors in this particular case, both of them end up creating very strong case. So in Vullo, the authority the government speaker above those being addressed. In Vullo, you have an agency that regulates a trillion-dollar market, I believe, has the ability to issue multimillion-dollar fines and do so directly. She doesn't have to make any -- unlike for instance, the Bantam Books case, she doesn't have to make a referral. She can go ahead and enter into these sorts of judgments herself.

 

      The content and purpose of the communications in Vullo, again, the content and purpose were eminently clear. So much so that you actually saw one of the insurers contact the NRA and say, "Look, I'm sorry. We're going to have to drop you. You've been a client for 20 years, but we're afraid that our license is going to be pulled," so the content was particularly strong with regard to the threats. And the effect of the government's conduct, again, looking, for instance, just at that particular instance that I mentioned, the insurance companies got the message and they acted upon it.

 

      Similarly, looking at the Murthy case, here you've got agencies that were involved, including the FBI, including a number of regulatory agencies. No question that they've got wide-ranging authority. The content and purpose of the communications -- we went over some of those communications, which were extraordinarily directed in terms of who it is, who they were seeking to have deplatformed, and the effect of the government's conduct. Again, the Fifth Circuit's determination that at a certain point, after putting pressure, after threatening the potential loss of Section 230—or potential revisions to Section 230—after threats of potential changes with regard to antitrust enforcement, after threats of liability with regard to even potential deaths—which they were blaming on the misinformation—the government was able to achieve what the Fifth Circuit deemed to be total compliance.

 

      So that's a general overview of taking a look at how Bantam potentially would be applied in these sorts of cases.

 

Casey Mattox:  And, Will, we'll come to you. And as you answer, I think one of the things that Robert raised is that in Vullo you have the -- it's cleaner in the sense that Vullo you've got one person who is the --

 

Will Duffield:  Exactly. I --

 

Casey Mattox:  -- let's do, like, a bunch of people in the federal government. That kind of cuts both ways, but --

 

Will Duffield:  I think that tidiness has certainly influenced how lower courts would approach these cases and how arguments by plaintiffs in both cases have proceeded. And I think it's made Vullo, so far, a kind of healthier case. So we have Bantam Books. That's one, I think, referrable line of jurisprudence to draw upon here.

 

      The other case we have from the Supreme Court in this jawboning space, but really about findings of government action when some private action is actually that of the state, is Blum v. Yaretsky. And while Bantam Books has this threat standard, the actual or threatened imposition of government power or sanction, Blum goes in a slightly different direction, requiring it's significant government encouragement such that the choice must be in law deemed to be that of the state.

 

      Now, that seems like a harder standard to meet at first, but unfortunately—and I think because of the messiness of this Murthy case—the fact that the government pressure was distributed amongst a bunch of different actors, some of whom might have had power to regulate social media platforms or conduct investigations, give them a hard time, but some of them not. Andy Slavitt, who sent some of the most prodding, bleeding emails, really only had the power to send nasty emails. Kayleigh McEnany, who talked about modifying 230, was a press secretary speaking on MSNBC. And, obviously, as a congressionally passed law, it’s not within the executive branch's purview to make changes to it.

 

      So, because of that messiness, it seemed as though the Fifth Circuit took this Blum standard but pared it down just using the significant encouragement portion, which obviously all of this falls into. It's obviously significant encouragement. Whether it's enough encouragement or pressure that platforms' decision should be seen as that of the state, I would really say no. There was a lot of pressure to remove these sorts of accounts—in some cases, the exact accounts that the government was pressuring platforms to remove—coming from civil society groups as well. The White House got that list of 12 disinfo super spreaders from a British nonprofit.

 

      So I think using this pared-down version of Blum up until this point has helped to propel Murthy along, perhaps more easily than it might have arrived at the Supreme Court otherwise. But because we're only using half of this traditional standard, if you use the whole thing, it doesn't work nearly as well, and there's lots of reason to favor the Bantam Books line of jurisprudence because we don't have to look at what actually happened. We just have to look for the presence of the threat, which, particularly in this messy digital environment, is much harder to -- is much easier to discover than delineating or determining which part of the effect was the result of government pressure versus which was a private decision.

 

      Now, thankfully, because these two are being heard together and because NRA is so clear-cut because Vullo is here doing everything herself with regard to these threats, I hope that will take the Court towards Bantam Books as the correct line of jurisprudence to use in resolving all of this.

 

Robert Alt:  So if I can jump in there, I think that it's a good point and one that's worth discussing. I think that there's strong reason for the Court to be able to go in that direction. If you take a look at the Fifth Circuit's decision, they analyze each -- there are a slew of different actors where they take a look and say, "Okay. Is this coercion or substantial encouragement? And they begin each one sort of analyzing tests, but the substantial encouragement test being under Blum.

 

      And essentially, there's only one—if I'm recalling correctly, only one—of the agencies—in this case, the CDC—where they find that there isn't actually overt coercion, which is to say they find that it wouldn't be captured by Bantam Books, and they apply the Blum standard. So, given that, quite frankly, if the Court wants to go down the Bantam Books standard but nonetheless has concerns about the jawboning here, there's more than enough room—there's more than enough defendants in the case who—assuming that the Fifth Circuit is correct in its analysis, and I think they've built a substantial case there—to show that you actually have the makings of Bantam Books-style overt coercion.

 

Casey Mattox:  So a lot of the conversation -- so the Court's hearing this—hearing both these cases just—what—three weeks after it heard the NetChoice, maybe four weeks after it heard the NetChoice cases, and so—and even then, I think some of the things that Solicitor General Prelogar said in those arguments people interpreted as foreshadowing some of the conversations we were likely to hear when she stands back up and tries to defend the federal government in these cases, or at least, especially in Murthy. A lot of the conversation there in the NetChoice cases was basically several justices being concerned about the facial nature of the relief requested was reaching parties outside. It wasn't clear exactly who was going to be protected by the injunction and what are the implications of a broad decision against the Texas or Florida laws.

 

      So having said that, should we expect to hear similar expressions of judicial modesty in terms of the injunction here and the breadth of the injunction because the Fifth Circuit's injunction, for example, in the Murthy case certainly covers people beyond the parties to the case, reaches other people? How do we expect that kind of interplay between these kind of four cases now, I guess, to play out here, Will?

 

Will Duffield:  I would, I guess, expect and hope for a certain amount of that. Because, looking at the Fifth Circuit's injunction, I view it as simultaneously too narrow and overbroad. It would seem to capture some, perhaps on the margins, legitimate informational activities, notifications, that sort of thing by agencies included in this order.

 

      But also, on the other hand, it includes a carveout for election security, which eats a lot of, I think, most of our concerns about how jawboning can be misused or how notice can be misused. The exemption is for contacting or notifying social media companies about foreign attempts to influence elections, which is essentially the root of concerns about government pressure on Twitter to remove the New York Post article about Hunter Biden. They issued notices and warnings to Twitter and other platforms in the lead-up to that, saying they were expecting some kind of hack-and-leak operation. And this, along with suggestions by former government employees who had been gone over to the work at the platforms about the origins of this Biden laptop, are exactly what is seen as pressuring the platforms to do something about that article or otherwise they might not have. So I don't see this injunction as getting us out of the woods on one side or the other.

 

Robert Alt:  Yeah. So looking at this, of course, first of all, it's worth noting that the Fifth Circuit ended up narrowing significantly the injunctive relief that it had been proffered by the district court. The district court really applied much more the Blum standard with regard to injunctive relief, looking at issues of substantial encouragement or even merely encouragement. And some of that language was so broad you really got into a situation where you would be quashing what could be legitimate speech as opposed to coercive speech between government actors and the social media platforms.

 

      Yeah, something that Will -- this goes back, though, to, I think, the issue I presaged a little bit on confidentiality. And this ends up being a dominant factor in this case and something we highlighted in the brief, which is to say it was actually somewhat disingenuous the way the government engaged in the litigation when the initial arguments were made with regard to the communications between government actors and the platforms. They initially threw up their hands, "What are you talking about? You've got no evidence associated with that." And, of course, you don't because it happened behind closed doors, and it took discovery to ultimately get that particular information.

 

      But I do think that this ends up being a massive issue with regard to any kind of judicial relief. It is determining to whom to address the prohibition with regard to the bad actions. And so, in this sense, I think both Cato and Buckeye share a legal fellow in Andrew Grossman, who has done some able writing on the need for disclosure. But unfortunately, I don't know how you're going to get that without the intervention of the political branches, specifically Congress, in terms of acting on that. But I think that really goes to some of the difficulties associated with fashioning an adequate remedy here if you don't know who the bad actors are behind the closed doors.

 

Will Duffield:  I have to completely agree there. There's a real due process issue that has kind of floated unmentioned as we talk about this happening behind closed doors, but it's certainly part and parcel of the problem with jawboning that goes beyond impositions on speech or access to banking, especially when these initial government communications are happening behind closed doors when platform decisions are being made out of public sight in response to even public pressure by legislators. There isn't any kind of legal due process in play for users.

 

      I think it would be beyond the remit or authority of the Court to impose some kind of disclosure model. That is a role for Congress, although I think a narrow decision can certainly include language requesting that Congress take some action explaining the limits of what the Court can do here—the limits of an injunction, as we've seen in similar cases in the past. In Backpage v. Dart, credit card companies that had been bullied by a sheriff into withdrawing service from Backpage never reinstated their service. The sheriff was enjoined from further bullying, but the credit card companies were still influenced -- remained influenced by the threat. If you go back to Mountain States' telephone case, there a phone sex hotline was reinstated, but the platform or telephone service provider later removed them probably in response to ongoing pressure from the local D.A. You can't keep suing about this sort of thing.

 

      So I think disclosure certainly helps and will help in the future if we can get it to target future lawsuits. The fact that we have Missouri and Louisiana as plaintiffs in this case isn't an accident. I think it's because they were the only ones who could really survive standing to get to discovery, whereas other litigants weren’t necessarily able to prove that the government had some hand at the initial motion to dismiss and so never got to that kind of discovery that might have revealed it.

 

Casey Mattox:  So we are starting to get some questions here. I want to turn to some of the questions in the Q&A. And please, again, drop your questions there if you have them.

 

      So I'm going to combine a couple of these here because I think Mitchell Keiter has a question here. First of all, I'm going to ask you, Will, if you can give the brief explanation of what is Section 230 because we didn't define a term here. And then, also, I think Mitchell's question is kind of teeing up. It's basically, "Is the executive branch really powerless over Section 230?"

 

      And I think that is teeing up this question of just how much authority do you have to have -- does the government official have to have?" A jawbone, for example, is not a particularly threatening weapon, and yet, it can still be effective. And particularly as the government grows and expands, it's so --

 

      I'll give you an example here that's not presented here. But you're a social media platform. You're trying to buy another social media platform. The Federal Trade Commission has authority over whether or not it's going to allow that merger to go through, and it means a lot of money for your company if it goes through. No one ever says a word about that pending merger. But someone from that agency contacts you the day before you're expecting news on that merger and says, "Hey. We just have a couple of tweets we thought you might want to consider deleting." They're not making any threat. They're not raising anything, and certainly, if you were the social media company, you would probably -- it would be a great -- the silence would be deafening.

 

Will Duffield:  Totally. I—

 

Casey Mattox:  How do we deal with that, and what's the law on that question?

 

Will Duffield:  There are myriad ways that government can interfere with a private business.

 

      Stepping back a moment, Section 230 is an intermediary liability statute that prevents platforms or websites from being held liable for user speech while giving them carte blanche authority to moderate their platforms as they see fit.

 

      If—as per Mitchell's question—we were in this situation, and if we had a clear majority in favor, there'd been some bill passed that a veto was coming up in time to sign, I think that would look very different. In a divided Congress in which nothing surrounding 230 can seem to get off the floor one way or another, it feels a little bit different. That's not to say the administration didn't have lots of other ways to interfere with these platforms.

 

      Even government contracting, I think, can play a huge role. If you're Amazon and you're vying for the JEDI contract with Microsoft, and someone from the DOD calls you and says, "Hey, you're hosting some kind of fishy websites or this anti-recruitment website," something like that, that's concerning because they could easily tip it to your competitor if you don't play ball, and you have no way of knowing whether your action on this website will play a role in the contracting process or not. And so, if you can't wall that off somehow, you have to assume it might, and you take down the website.

 

      So I think that is where this gets very sticky, though, in terms of an injunction. You can't enjoin the executive branch or even the president from engaging at all with some platform. You don't want to exclude them from government contracts so that they can't be bullied. But instead, I think, it makes disclosure paramount.

 

      And to jump on Brent's question at the end, it makes the FBI not using self-deleting messages when speaking to these private parties paramount. Any kind of disclosure requirement should have a records retention stipulation, in order for that sort of thing from happening, obviously. If you need to pass the contents of your communication up the chain through OMB to be published for everyone to see, you can avoid that by just autodeleting the messages before passing them up.

 

Robert Alt:  So I just want to jump in on -- and because I think some of what's tied up in this is the authority question. What authority do you need to have to meet the threshold requirements for coercion? And again, I'll go back. I think Will and I both seem to favor the Bantam Books standard in terms of the potential standards to apply. If you take a look in that case, the regulatory agency in question did not have direct regulatory authority over the bookstores. And the really adverse actions that could be taken could be taken via referral.

 

      And so, in terms of that, you take a look at some of these questions like, "Well, gee, how much authority does the executive branch really have over changing Section 230?" Well, obviously, the executive isn't going to pass the law. They could potentially sign the law. They could indicate how they're going to—but they could also advocate very forcefully for a change in the law. The president and the White House could use the bully pulpit to say, "Look. These guys are acting -- are killing people. They're not handling themselves correctly. We need to eliminate this Section 230 exemption."

 

      So I don't see that as being all that distant from the actions that we saw as regulable in the Bantam Books case. I don't think it has to be. And for it to be directly on point, it would be, again, in that case, the agency had the ability to make a referral to the Attorney General, who then exercised prosecutorial discretion with regard to whether or not to go after particular book sellers. And that wasn't a sufficiently attenuated chain of causation such that that broke what was requisite to be able to demonstrate coercion.

 

      So I don't think it needs to be -- this might be -- sound a little mushy, but I don't think it needs to be the -- obviously, it's cleaner. Vullo creates a nice case because there you've got the regulator in question, but if you have, in fact, agencies that are strongarming, they don't actually have to be the enforcement agency if we read Bantam Books.

 

Casey Mattox:  Would it be more problematic? I guess, to that end, one of the differences between Vullo and Murthy may be that in Vullo you actually have the regulatory agency, that is -- that at least has the big leap of authority to do what it's doing to insurers. They're the regulating agency.

 

      We don't have—fortunately, I will say—but we don't have in this—the federal level—a federal agency responsible for content on social media. If we did, if we had a federal -- instead of it being Department of Justice or the Surgeon General or someone like that, if it was the Federal Department of Social Media Content that actually had some sort of regulation authority over social media platforms, would that potentially, I guess, first of all, be a bigger problem in terms of jawboning? But also, how would that change the analysis? Maybe I'm asking a hypothetical on top of hypothetical here, but—

 

Will Duffield:  I think it would make it easier there.

 

      Part of Bantam Books is whether or not the threat is realistic. It doesn't have to be something that they're actually carrying out or something that the subject of the jawboning even truly believes that they're going to carry out, but it needs to be within the realm of possibility. And the press secretary there, to me, feels less important—she doesn't have official duties or powers beyond saying things—in a way that the actual regulator is quite different, and the President saying it, who has the power of the pen himself rather than just speaking on behalf of, would make it different. But there, if Biden's saying, "I'll throw the sum at you, Mark Zuckerberg, if you don't take these people off," we say, "Ah, he's just getting senile. Like, this isn't really a realistic threat."

 

      So I do think an empowered regulator -- also, I think if some of these threats were being passed through more relevant agencies, that might alter our analysis a little bit as well. If the White House press secretary had gone to the FTC's press secretary and said, "Hey, can you put something out about how you are concerned about approving mergers by platforms that don't take COVID seriously?" then that starts to look worse. That feels worse than just the president's press secretary on MSNBC jawing way.

 

Robert Alt:  Sure.

 

Casey Mattox:  I guess the challenge with something like the Section 230 repeal is that, through the platform, even if -- well, does the President have the authority to do this?—setting aside the fact that there have been some pretty high-profile examples where we would have all thought that the executive branch didn't have the authority to do a thing, that it nevertheless asserted the authority.

 

Will Duffield:  Well, and they can claim it. Adam Candeub claims that the executive branch can review and change Section 230 at will, so those arguments are out there. And if you believe them, they carry more force. That's a more realistic threat.

 

Casey Mattox:  Or if you're the social media company, look, even if you can't do this, you can force me to spend tens of millions of dollars fighting it. Even if I am ultimately successful, you can force me to go litigate or lobby or do whatever else. And that's a real cost, especially when you could be -- all that is being asked of the social media company is just quietly delete a tweet.

 

Will Duffield:  I agree. A final messiness just to get at this first John Locke question about the agency portals I think are interesting or implicate another wrinkle here in that I think those portals were largely "voluntarily" in a bounded sense constructed by social media platforms but in response to congressional threats. You had congressional jawboning for several years before COVID about foreign disinfo, foreign threats in order to assuage some of those concerns, forestall regulation.

 

      Platforms create these reporting portals, but then they're overwhelmed by more and more reporting about things that don't really look like national security, disinfo, intelligence threats, and more government agencies making use of these portals over time, potentially sending threatening or pressuring request demands through them. So there, it gets even more attenuated until as to who is doing the work of jawboning of applying that pressure. Was it Congress in bullying the creation of these portals in the first place or the executive branch agency employees who used them or misused them later on?

 

Casey Mattox:  So we're coming up on time. I want to say first of all if that's the real John Locke, it's an honor to have you on, and I would love if you could stick around later. I'd love to have you sign a book for me.

 

      Well, basically, just in the last few minutes we have here, Robert then Will, we'll have you provide your closing thoughts. And if you want to hazard a guess as to what you think that the Court is likely to do in the two cases, this is a great time to do that.

 

      So Robert.

 

Robert Alt:  Well, I just actually want to wrap up by going to your previous question, Casey, which was: Wouldn't it be easier if there was the general Office of Truthiness in the government?

 

      Of course, it would be, but the interesting thing is that the administration and the Fifth Circuit essentially argue that there was a consolidated interest that they had in countering misinformation. And that should make all of our blood run a little bit colder for a moment. If the experience of COVID alone didn't tell you that, yes, there was a problem with misinformation, and much of it came from the government, having them be the arbiters of truth in their self-appointed and suppressing speech is not the way to run a railroad or a government. And the fact that it ends up being done through diffuse agencies that are able to point fingers rather than through a single agency of truthiness—again, the First Amendment is sufficiently protective, I think, to be able to deal with that kind of issue. It's messier; Vullo is cleaner, but I still think that there are issues there that ultimately need to be addressed.

 

      As for making predictions, I learned a long time ago not to do so. Perhaps that is my superstitious nature, but I do think I'll just say, I'll go back to my one point, which is I think that there's a sufficiently narrow ground based on coercion that for them to be able to handle both cases, and just given the chief's predilections, I think the Court will take a narrow path, so I think that there's a decent chance you'll see that be core to the ruling.

 

Will Duffield:  I also would add that I would want to foresee the government as, hopefully, a provider of truthful information but not an arbiter of it.

 

      As for predictions, I would predict that the Court will make some decision under Bantam Books. And I predict that whatever decision they make, it won't fully solve the issue. This is something that will require congressional action. It will require a bill mandating the disclosure of the content of these communications because even if there is some broad or narrow injunction in play, there's always going to be the question of what else is happening out there that isn't being noticed, that isn't being recorded, that the government understands rightly or wrongly to fall outside the bounds of this injunction. And so, you have this -- will continue to have this skepticism about the available information on these platforms. Whether or not it's been pre-pruned by someone at the government's behest, unless you get broad-based disclosure.

 

Casey Mattox:  Thank you, gentlemen. Thank you both.

 

      And Chayila, it's back to you.

 

Chayila Kleist:  Absolutely. Thank you all for joining us today. We really appreciate you lending us your time and expertise this afternoon.

 

      Thank you, also, to our audience for joining and participating. We welcome listener feedback by email at [email protected]. As always, keep an eye on our website and your emails for announcements about other upcoming virtual events.

 

      With that, thank you all for joining us today. We are adjourned.