Yesterday I published this preview of what was at stake in today’s Murthy v. Missouri arguments in the Supreme Court in an FAQ with Dean Jackson. It’s a great write-up of the issues and politics around the case if you’re looking to get read-in.
Going into today’s oral arguments in Murthy, my overwhelming fears were thus:
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- That the Court would somehow fall for the bizarre gambit of a bunch of far-right conspiracy theorists who claimed they’d been censored by social media companies because some people in government wrote emails to Twitter and Facebook.
- And that if the Supreme Court believed them, it would have really terrible consequences for the amount of content moderation companies can do to make their platforms safer.
- And that we’d lose the ability for any part of government to surface important information and signals to any private companies about everything from national security to kid’s health.
Perhaps it was the soft bigotry of low expectations, but not only did I walk out of these arguments optimistic, but I felt some great relief at the sanity that the Court had wrestled reality back from anti-vaxxers and free speech zealots. Here’s why:
Alito, You Don’t Have the Votes
Early on in the Principal Solicitor General Brian Fletcher’s argument [NB: He’s arguing for the good guys] , Justice Alito made clear that he thought that there were procedural grounds for affirming the lower courts. This was a strategic move for Alito.
Brian Fletcher, Principal Solicitor General
The idea behind this strategy is that rather than reach the hard questions on the merits of the case, the Court can be like, “Oh, we’re sorry, the procedural standard of review forbids us from not taking the lower court’s opinion on the facts of the case, so we have to agree with them.”
JUSTICE ALITO: All right. Both -- the district court found that the injury was traceable to the government's actions, and the -- the Fifth Circuit accepted that finding, reviewed it, and accepted it. So that's two lower courts. We don't usually reverse findings of fact that have been endorsed by two lower courts. And you haven't attempted to show that it was clear -- that that finding is clearly erroneous.
If you can get everyone to go in for a very lax standard of review — like “clear error” — that’s a standard that is very deferential to the findings of the lower court, which means it’s easier to affirm without digging into every aspect of the record and checking notes . . . which is unquestionably where this case falls apart for the states of Missouri and Louisiana, so Alito’s tactic here is sensible if he wants to support the conservative position.
But no one seemed to be buying that the record was insufficient or that this should be a case that wasn’t decided on a more rigorous standard of review. In fact, to the contrary, everyone from Justice Barrett to Justice Sotomayor thought that the record was not just incorrectly interpreted by the lower Court, it was inaccurately represented in the State’s briefs. . .
Everyone else thought the record was plenty clear and Sotomayor even scolded the Solicitor General for a deceptive brief
Over and over again the Justices — particularly Barrett, Sotomayor, Jackson, and Kagan — just raked the Solicitor General of Louisiana, Benjamin Aguiñaga [NB: he’s arguing for the bad guys], over the coals. Over and over they kept asking him for a First Amendment test to apply.
J. Benjamin Aguiñaga, Solicitor General for Louisiana
And over and over again he kept saying things that made it seem like he’d prepped for oral argument by reading the First Amendment Wikipedia page and checking his vibes.
MR. AGUINAGA: . . I guess the top-line question I would ask is, has the government set out to abridge the freedom of speech? And in this case, you see that time and time again because, if you control F --JUSTICE JACKSON: But that's not the test for First Amendment violations.MR. AGUINAGA: Your Honor, this flows from the plain text of the First Amendment, right?JUSTICE JACKSON: No, I understand. But we have a -- we have a test for a determination of whether or not the First Amendment is actually violated. So, in certain situations, you know, the government can actually require that speech be suppressed if there's a compelling interest, right?
Okay, for the non-laywers out there, I don’t know how to explain any more simply than this:
The First Amendment doctrine is incredibly complex and indeterminate — but it has rules, and tests, and brief moments of sanity. And what it doesn’t have is a Feelings Test that “flows from the plain text of the First Amendment.”
In a patient-bordering-on-saintly exchange Justice Barrett spells out the logical flaws with this absolutist analysis in a great series of factual questions, driving home that there are plenty of situations in which we would want the government to talk to private companies — for example if the FBI had to call X or Facebook because someone was threatening you online and doxxing you (wonder why the Justices have anxiety over this hypo. . .). It was a sharp interrogation, and Barrett has some of the most natural use of “Internet language” and product that I’ve seen from any of the justices.
But the best moment by far, especially for those of us who have just felt gaslighted by the Western District Court of Louisiana and the Fifth Circuit opinions, was when Justice Sotomayor called out the factual misrepresentations in the State of Louisiana’s brief:
JUSTICE SOTOMAYOR: You know, I -- I have such a problem with -- with your brief, counselor. You omit information that changes the context of some of your claims. You attribute things to people who it didn't happen to. At least in one of the defendants, it was her brother that something happened to, not her. I don't know what to make of all this because you're -- you have a -- I'm not sure how we get to prove direct injury in any way.
This has been one of the things that I’ve said in both public writing and public debate on this case — there just isn’t an injury. Not only were some of the people named in the brief NOT BANNED OR THEIR SPEECH REMOVED there’s nothing in the record that demonstrates firm links that show causality between communications from government to tech companies and vice versa even if you had a really, really broad understanding of the First Amendment. And to make their arguments seem feasible, Louisiana and Missouri (and the District Court and Circuit Court) had to really slice and dice the record.
So it felt amazing to hear Sotomayor acknowledge this and to hear some norm enforcement in the halls of justice.
The Small World of the Supreme Court
So to really get the most out of these oral arguments you really have to understand how well all these people know each other. And when I say these people, I mean the Justices and the attorneys arguing before them. The circle of people arguing or sitting on the bench is an elite echelon. There just aren’t that many people — from the likes of Paul Clement in last month’s Netchoice arguments who has argued in SCOTUS 100+ times to the Justices themselves — who haven’t been rubbing elbows with partners, jurists, government, and academics at top institutions for their whole careers.
And that was especially true in Murthy where the Solicitor General of Louisiana, Aguiñaga, who argued before the Court today was a recent clerk to none other than Justice Sam Alito.
So as Sotomayor, Barrett, Jackson, and Kagan figuratively beat Aguiñaga to a pulp, the silence from Alito was near deafening. Until finally, he stepped in to rescue his former employee:
JUSTICE ALITO: Well, Mr. Aguinaga, I think some of your most recent colloquy with my colleagues have gotten off into questions that I didn't take it from your brief we -- you think we actually need to decide in this case. So I thought your principal argument was that whatever coercion means, it -- what happened here is sufficient and that coercion doesn't mean only -- it doesn't apply only when the government says do this, and if you don't do this, there are going to be legal consequences when it says that in this same breath, but that it's a more flexible standard and you have to take into account the whole course of the relationship regarding this matter. That's what I -- I took to be your principal argument. Did I understand that correctly?
When your former boss has to step in and restate your argument for you, that is not so good. It’s what we might call really bad.
The second inside baseball moment came when Justice Kagan laughingly referred to both her and Justice Kavanaugh’s respective stints in the executive branch — an experience that you can bet gave them a very pragmatic approach to how government and private entities should interact when it came to jawboning. Her recounting was near derisive:
JUSTICE KAGAN: I mean, can I just understand because it seems like an extremely expansive argument, I must say, encouraging people basically to suppress their own speech. So, like Justice Kavanaugh, I've had some experience encouraging press to suppress their own speech.You just wrote an editorial. Here are the five reasons you shouldn't write another one. You just wrote a story that's filled with factual errors. Here are the 10 reasons why you shouldn't do that again. I mean, this happens literally thousands of times a day in the federal government.
Count them with me now: that’s Kagan, Kavanaugh, Barrett, Sotomayor, Jackson, and likely Roberts. At least a 5-4 majority to reverse.
This is All Great News for Netchoice
It’s not just that the absolute refusal of Justices Barrett, Kagan, Jackson, and Sotomayor to put up with the bullshit, the arguments also exposed a couple of key moments about how Murthy had potentially shaped the hand of a very different but perhaps more important case: Netchoice.
As Justice Barrett herself stated at the close of arguments:
JUSTICE BARRETT: But that's just kind of falling back on, well, this case is different, this case is different, and so a different legal standard should apply, but, you know, what we say in this case matters for other cases too.
Yes, yes it does. Which is why its so interesting that Justice Alito, who hates the social media companies with the fire of a thousand suns . . . kept comparing platforms to the press at today’s oral arguments.
JUSTICE ALITO: Would you do that to The -- to The New York Times or The Wall Street Journal or the Associated Press or any other big newspaper or wire service?. . .Do you think that the print media regards themselves as being on the same team as the federal government, partners with the federal government?. . .I know the [platform’s] objectives [during COVID] were good, but -- but, once again, they were also getting their news from the print media and the broadcast media and cable media, and I just can't imagine the federal government doing that to them. But maybe I'm naive. Maybe that goes on behind the scenes. I don't know. But I -- I -- it struck me as wow, this is not what I understand the relationship to be.
Why is this so significant?
Well, Netchoice (argued in February and which I wrote about here) was a case all about whether the government (specifically Texas and Florida) could force social media platforms to carry all information that users tried to publish without content moderation (as Texas and Florida had regulated) or if the platforms had their own First Amendment rights — like media companies and newspapers — to decide what was hosted on their platforms.
That Alito —the most unfavorable person to these arguments — but also many of the other Justices spent so much time comparing the platforms to press even in the Murthy context, exposes that this might be starting to become the predominant analogy that the Court is getting ready to adopt.
And that, for all the reasons I wrote about here is great news for online speech.
On that optimistic note, I am headed to bed. À bientot from Paris and please consider recommending or purchasing a subscription.
xo,
K
Thank you to Margo Williams for help listening and note-taking on the Supreme Court Arguments.
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