Supreme Court Blocks Texas Social Media Law

David and Sarah cover a wide variety of topics, from the Amber Heard/Johnny Depp verdict, ...

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David and Sarah cover a wide variety of topics, from the Amber Heard/Johnny Depp verdict, to the acquittal of Michael Sussman on charges of lying to the FBI in a case brought by special counsel John Durham, to a Pennsylvania election law dispute, and of course the Supreme Court’s decision in the Texas social media case. They end with a discussion of a new Gallup poll about abortion rights and a discussion of the many problems of issue polling.

Show Notes:

–NetChoice, LLC v. Paxton

–Sarah in Politico: “What Alito Should Have Written”

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Comments (80)
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  1. Avatar photo
    BrettH

    Definitely a famine episode on the legal side. BUT, "poop in the bed" made it all worth it.

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  2. Ben P

    I would love to hear more about the standard for proving defamation on a future podcast. I have no training in the law, but I like to think of myself as someone who knows a bit about the 1st amendment. And the jury instructions in the Depp v. Heard trial startled me:

    (4) Did Ms. Heard's statements convey a defamatory implication... ?
    (5) Are the implications or insinuations about Mr. Depp in Ms. Heard's statements false?

    Whaaaa? That sounds outrageously open-ended to me. Heard (through her ACLU ghostwriter) publishes three statements that are all, on their own terms, obviously factually correct. But, when the jury reads between the lines, they find defamation?

    I feel naïve saying this, but I thought statements had to be false in-and-of themselves to be defamatory. I appreciate what Sarah and David said about the problem of "where to draw the line", and now I know I was way off on where that line falls. Are "implication" and "insinuation" well defined in the law?

    * edit: I suppose at some point any statement has to be judged based on its "implication". If I say "Mr. Jones fondles young kids" and Mr. Jones sues me, I shouldn't be able to get away with claiming that I meant he fondles baby goats. It just seems like the basic truth that words must be interpreted doesn't need additional spelling out. Wouldn't it be enough for the jury to find whether my statement was false, rather than whether it "implied" or "insinuated" something false? Using language like "implied" or "insinuated" in jury instructions sounds like it invites them to use their imaginations.

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  3. Lylegruby

    Wait, I’m confused on the 5th Circuit issue. The 5th was about the reverse the district court, but SCOTUS has now come down on the side of the district court. How can the 5th Cir. issue an opinion that disagrees with SCOTUS?

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    1. Avatar photocircle-angle-nib
      Sarah Isgur vertical-nib Author

      yes this is a good question. the district court ruled for the social media companies AND entered an injunction blocking the law. the fifth circuit lifted the injunction BUT hasnt ruled on the merits. the supreme court reinstituted the district court's injunction but again hasnt ruled on the merits bc the fifth circuit hasn't ruled on the merits.

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      1. Lylegruby

        Which leaves the 5th Circuit in the (unenviable) position of…writing an opinion lifting the injunction but leaving the injunction in place? I’m just not sure what the majority on the panel is supposed to do at this point.

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  4. Avatar photo
    Philbnichols

    With justices serving decades on the court, accidents of history can mean that one side of the ideological spectrum can believe they have been relegated to “permanent loser” status
    - Sarah, Politico piece
    Isn't "permanent loser" status where conservatives lived for decades with respect to the political leaning of the court? Why is it that liberal justices being in the minority on the court is such a tragedy? And besides, this conservative majority is actually quite diverse, seemingly more so than previous liberal majorities.

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      Philbnichols

      Woop! Woop! for Sarah's piece in Politico. I nominate her for the next opening on the SCOTUS!!

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  5. Jason V.

    I appreciated hearing your discussion of the evidence against Susman. It wasn't necessarily as open and shut as I had initially believed. However, I am curious about the "biased jury" accusation I'm seeing from some sources on the Right. The jury had three Clinton donors, one AOC donor, and one juror had a child on a sports team with Susman's daughter.

    The accusation (or at least implication) is the jury was biased due to those connections. Is that something that you agree with or are concerned about? Is it something that could come up on an appeal? Or is this just the challenge of jury pools in general?

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  6. DocHeartless

    I really appreciated Sarah's take on the Alito what-could-have-been draft in Politico. Like her and David, I wonder if Alito is no longer having as much fun on the court as he used to be. Don't fall into the angry culture wars, man -- you're too important for that nonsense!

    I also really appreciate the comments made in this podcast regarding the position of liberals and conservatives regarding abortion and each side steel man position. We will need David and Sarah's measured descriptions and opinions on this sensitive topic moving forward. Of course you can find a radical republican that wants children assaulted by an uncle to bring that baby to term, but the vast majority of republicans are willing to grant exceptions for rape, incest, and the health of the mother. A substantial slice of the right wing electorate would even get behind a compromise stance of elective abortion up to a certain point, though surely at a point earlier in the pregnancy than others might wish.

    Similarly, you can find a radical democrat somewhere that wants the right to choose an elective abortion just before birth, but the vast majority of democrats agree that there is clearly a line at which the fetus is a person and abortion should be illegal. Their steel man position is that they want elective abortion up to a later point and easier access to abortion services, and their illegal cut off point is probably later in the pregnancy than most republicans. It is a great irony that there isn't as large a gulf between these two camps as the media and the culture war wants to make us think.

    As a sign of hope for David's thesis, that we may go through a period of convulsion but that overturning Roe could lower the culture war temperature in the long run, I recently had great conversations with my two republican choices for state senate out here in Iowa. One was an ardent pro-life candidate and we had a great discussion about what type of legislation he would be willing to accept in the next two years--it looks increasingly likely they will actually have to vote through a policy. He understood that it may not be popular in certain camps, but he didn't feel that he could ever vote for any allowance of abortion in any form. The other candidate was pro-life as well, but he believed that it should be left up to the people of the state and is in favor of drafting compromise proposals for an amendment that will actually get a majority of the voting public. I was able to make a clear decision whom to support for my representative!

    This is all to the good!! National legislatures may be largely broken and performative, but I can't get Chuck Grassley on the phone like I can two state legislators. We can twist the arms of our local reps to actually pass something if we want it badly enough. Huzzah for federalism!

    **On a sad, unrelated note, our little owlet in the strawberry patch didn't make it. I hopped in my car the other day and was surprised to see Natasha on the ground not 20' away from me. She looked at me and flew off, leaving behind the fuzzy white little'n that we saw a week ago. We buried him underneath a new fern underneath a lovely oak tree. *sniff* But at least one other owlet flew the coop recently and we've got a regular chorus of 'who-cooks-for-you' singers in our backyard wild America.

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  7. Avatar photo
    Jacob

    How can Alito-Thomas-Gorsuch possibly square their citing of Pruneyard with Cedar Point Nursery v. Hassid? The state in Pruneyard essentially took an easement without compensation.

    If you're going to breach the property interest of corporations to compel them to platform or publish speech ... it's sensible to the extent that there is a public interest element akin to rules of eminent domain. But the Government needs to compensate the platform (or the shopping mall).

    Pruneyard (1980) was decided by the same 9 Justices as decided Penn Central (which sort of made the concept of a regulatory taking useless) in 1978. Breyer complained about de minimis trespasses and takings in Hassid, but so what? If it's de minimis, then people won't bother to challenge the government for recovery except perhaps on principle ... or they'd only do so after there have been many de minimis trespasses and takings such that in consolidation they'd be worth pursuing.

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    Bill

    Consider referencing Andrew McCarthy's writing on the Susman trial - there are significant details regarding the jury instructions that your listeners deserve to know.

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  9. Avatar photo
    Jacob

    Sarah's Politico piece is wonderful.

    Have you guys considered bringing Akhil Amar on to talk about the Alito opinion? His podcasts lately on this have echoed a lot of the same themes as you two.

    If you want to see a by-the-book breakdown of Roe, Justice Byron White's Thornburgh dissent is delightful. He explains the two predominant approaches to substantive due process (Harlan's Poe v. Ulman approach, and White's Duncan v. Louisiana approach) and explains how Roe doesn't fit in either. He sticks to the facts, discusses the institutional consequences, but doesn't moralize or air grievances. Honestly, all of the O'Connor, White, Burger, and Rehnquist dissents from the 80s in abortion cases are fantastic, and way better than Alito's draft opinion. Ironically, if Charles Fried had listened to then-adviser Alito in Thornburgh and not tried to attack Roe directly, that case probably would have gone differently!

    But also - is the problem Roe itself, or the emergence of Maher/Whalen/Carey in 1977 where the trouble started? Most of Roe seems like dicta, just as most of Heller was dicta. The concurrences of Burger and Douglas in Roe only make sense if most of the Roe opinion was dicta. Roe itself isn't dissimilar to the broad approach to Criminal Procedure and Rules of Evidence that the majority used in Griswold (where the emphasis was on enforcement of the law, not the law itself) or Vuitch (an abortion case published the day before cert was granted on Roe that was entirely about Criminal Procedure). It wasn't until 1977 that Griswold was treated as guaranteeing a right to contraception - even Roe didn't cite it for that proposition. In 1977, you started to see Burger and Powell raise eyebrows at what the liberal bloc was doing with Roe as well - and refusing to join some of their abortion/contraception opinions.

    White in 1985 well-summarizes the Harlan and White approaches to substantive due process, but doesn't address what the Griswold majority actually did: apply the First, Fourth, and Fifth Amendments broadly. That Griswold's majority is incomprehensible to us is because Brennan gutted the Fourth Amendment in 1966 (Schmerber v. California) and 1967 (Warden v. Hayden). Procedural Due Process includes rules of evidence (spousal privilege, privilege against self-incrimination, and the exclusionary rule) and there was no way to enforce that law without unconstitutionally compelling production of evidence or testimony (also, the idea of the privilege against self-incrimination only being *testimonial* wasn't the law yet - it included physical evidence in 1965) or breaching the property rights of the homeowners (police spying on the marital couch or rummaging through the bedroom for contraceptives). [fn1]

    Privacy is just that sphere of decisionmaking insulated from government interference by rules of property, procedure, evidence, and enumerated substantive guarantees. Lawrence (which say Kennedy put a lot of emphasis on rules of evidence) and Roe both made the mistake of confusing the impracticability of enforcing laws which interfered with private (but legally unenforceable unto themselves) rights (abortion, sexual intimacy) historically with there being a substantive enforceable right which was protected (i.e., confusing case outcome with the basis of decision). [fn2]

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    1. Avatar photo
      Jacob

      [fn1] The late Brennan years could be summed up as "this putz gutted the structural constraints on government power, and now he's post-hoc trying to do unprincipled carveout by carveout via judicial fiat." But Republican appointees (Harlan, Brennan, Stewart, Blackmun, Powell, Stevens) *routinely* were the advocates of judicial flexibility and it was democratic liberals (Black, Douglas, Goldberg, Fortas, etc.) who were the obtuse formalists demanding textual adherence. Byron White was a bit in between the two. It was only around 1975 (Douglas retiring) that you no longer had any liberal formalists, Rehnquist was the first modern Conservative formalist (sort of, since he and Burger could be flexible as need be), and it was only with Justice Scalia did you get a Conservative originalist breathing the same fire as Black and Douglas were spitting (which is why his Freedom of Speech, Fourth Amendment, and Sixth Amendment cases are so insanely liberal sometimes).

      [fn2] Alito's biggest problem, meanwhile, is he assumes the morality of American from about 1880 to 1950 was the same morality America had in 1868 (when the Fourth Amendment was ratified). He's a living traditionalist who freezes his traditions in Amber from the time just before he grew up. But Courts in the mid-to-late 19th Century was routinely horrified by the invasions of privacy and autonomous decision-making democratic majorities were getting up to - both in the economic and intimate spheres.

      Look at the scope of Boyd in 1886, and its emphasis on the Fourth and Fifth Amendments as protecting person and property (and privacy) ... as well as how its language is very plainly the source of Douglas's Penumbras and Emanations metaphor in Griswold ...

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      1. Avatar photo
        Jacob

        ALSO, SCOTUS didn't overrule Plessy in 1954. It distinguished public transportation from schools, and suggested Plessy was right on the law (emphasizing the discussion of stigma in Plessy) but that the stigmatizing effects of segregation in public education were far stronger than stigmatization in public transportation. It wasn't until Loving in 1967 that the Court overruled Plessy, by saying that we demand equality for *individuals* not between racial classes.

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          Jacob

          ALSO ALSO, here's a neat interview with William T Coleman where he discusses Brown v. Board a bit.
          https://www.youtube.com/watch?v=e9vL5W8NhPo

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  10. Roger Ellis

    The politico piece was super good Sarah.

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