Preet Bharara:

From Cafe and the Vox Media Podcast Network. This is Stay Tuned in Brief. I’m your host, Preet Bharara. Today we focus on the First Amendment, and in particular, the First Amendment rights of social media companies to moderate content. Last Friday, a federal appeals court upheld a Texas law that bars social media companies from removing posts based on a user’s point of view. The law was supported by members of the state’s Republican leadership, who have accused companies like Facebook and Twitter of censoring conservative voices. The reaction to the ruling has been swift. Legal experts have called it legally bonkers and incoherent. To unpack the decision, I’m joined by Jameel Jaffer, the Executive Director of the Knight First Amendment Institute at Columbia University. Jameel was previously the deputy legal Director of the ACLU, and he’s long been considered one of the country’s foremost experts in free speech law, so I’m glad he’s with us. Jameel, welcome.

Jameel Jaffer:

Thank you. So glad to be here.

Preet Bharara:

So, let’s talk about this case and what it means and how sort of off the charts it is. First, this law that we’re talking about here, out of the state of Texas, gives us a lot of stuff to talk about, HB-20. What is it that the law does that was challenged?

Jameel Jaffer:

So, this is Texas’s relatively new social media law, and it imposes a broad set of obligations on social media platforms, broadly defined. And maybe the most controversial provision is a must carry provision that prohibits social media platforms from discriminating on the basis of viewpoint. So, they can’t take down users’ posts because of the viewpoint expressed in those posts. The law also includes bunch of other requirements, transparency mandates requiring the social media platforms to disclose information about their content moderation policies, due process mandates requiring the platforms to explain to people who are platformed why they’ve been platformed. But I would say that the must carry provision, the non-discrimination provision, is probably the most controversial part of the law.

Preet Bharara:

So if upheld, does that mean… Do I have this right? Does that mean that if somebody posts, on a social media site within Texas, anti-Semitic or racist or other content, it can’t be taken off?

Jameel Jaffer:

Yeah, can’t be taken off on the basis of that content. Now, I suppose in theory, you could take content off if… If it were posted a hundred thousand times, then maybe that’s a content neutral justification for removing the content, but the platforms would not be able to take down content simply because it is racist or anti-Semitic or endorses terrorism or anything like that.

Preet Bharara:

What if it’s false?

Jameel Jaffer:

I think same thing. I think that the non viewpoint discrimination provision would foreclose platforms from taking down speech on the basis of purported falsehood.

Preet Bharara:

Right. Because who’s to say? Who’s to say?

Jameel Jaffer:

I think one question here is just, what does this law actually mean? And if the platforms actually had to implement it, I think it would be a nightmare, because it is not at all obvious how these terms map onto viewpoint discrimination, maps onto the platform’s content moderation practices.

Preet Bharara:

So then, how did this law end up in court?

Jameel Jaffer:

Well, let me just say that this is one of two big social media laws that are coming out of the states right now. So, there’s the Texas law. There’s also a Florida law, which has already gone up to the 11th circuit. In both cases, you have coalitions of platforms challenging the constitutionality of those laws. The Florida law is similar, in many ways, to the Texas law. You have these platforms challenging the constitutionality of the laws, principally on First Amendment grounds, arguing that their content moderation practices reflect editorial judgment that is protected by the first amendment. And the platforms are arguing that any law that requires them to publish things they don’t want to publish, or that forecloses them from taking content down that they would like to take down infringes on their editorial judgment and violates the First Amendment. So, that’s the basic structure of the arguments in these cases.

Preet Bharara:

How did this log in into court? What’s the challenge?

Jameel Jaffer:

Yeah. So, the platforms brought the case in both Florida and in Texas. The 11th circuit, in the Florida, case struck down the Florida law. And in this case, the fifth circuit case, the court upheld the Texas law. So, now this is circuit split. You have one appeals court having said that, the social media regulation of this kind is not a First Amendment problem, and the other court saying, essentially, it is a First Amendment problem. And the truth is that there are really difficult questions in both of these cases about to what extent the content moderation policies of the platforms is protected by the first amendment, what it means that the platforms are engaged in editorial judgment, what kinds of regulations might be constitutional in this context. There are a lot of hard questions. I don’t think that the fifth circuit opinion, which is the one that came out on Friday, really struggles with those hard questions at all.

Jameel Jaffer:

Instead, the basic theory of the majority opinion is that the platforms aren’t engaged in editorial judgment at all. What they’re engaged in is censorship, and there is no First Amendment problem with a state prohibiting private actors from engaging in censorship. That’s the theory of the majority opinion.

Preet Bharara:

So, I learned in law school, and we discussed on the show, and experts say all the time, that there’s a difference between private actors, whether that’s individuals or corporations on the one hand, or state actors meaning governments. How much does this decision in the Fifth Circuit, if it stands, call into question, that distinction that we’ve always held to be very important?

Jameel Jaffer:

Yeah, I mean, I think that that is the most bewildering thing about the Fifth Circuit decision, is that it treats these editorial decisions by private actors as if they were subject to the First Amendment. And the truth is that the first amendment was meant to guarantee the freedom of private speakers who decide for themselves which speech is worth publishing and which speech isn’t worth publishing.

Preet Bharara:

And two things there, both the right to speak and the right not to speak. Both are implicated here.

Jameel Jaffer:

That’s right. That’s exactly right. The problem with the Fifth Circuit opinion is that it just recasts editorial judgment of these platforms as censorship and just overlooks the fact that these platforms are private actors making constitutionally protected decisions relating to the publication of speech. So, it’s just a kind of Alice in Wonderland opinion. It’s very difficult to make any sense of. It’s impossible to reconcile with existing precedents. And again, I don’t want to suggest that the answers in this case, or in the Florida case, are obvious. I really do think that they’re hard cases, but I don’t think that the fifth circuit decision really gets there at all, because the Fifth Circuit is really just engaged in an exercise in relabeling, labeling as censorship things that have traditionally been thought of as editorial judgment, and labeling as editorial judgment things that have traditionally been thought of a censorship. And it’s very unsatisfying.

Preet Bharara:

And treating like a government, an entity that’s in the private sector.

Jameel Jaffer:

Yeah. I mean, I think that there is one… The Fifth Circuit does say one thing that I think is indisputably true, which is social media platforms are very different from newspapers. There’s just long line of cases protecting the editorial judgment of newspapers. And the Fifth Circuit says, “Well, that’s all well and good when it comes to newspapers, but social media companies are different from newspapers.” Hard to dispute. Obviously, they’re different. But what the fifth circuit then does is, it says that, because they’re different from newspapers, they’re not protected by the first amendment. Their editorial judgements don’t count, as far as the first amendment is concerned.

Preet Bharara:

Well, are they saying… Is this part of the argument, either explicitly or implicitly, that social media platforms are like public squares, and the public square, you shouldn’t be able to suppress speech. Does that make sense? Is that what they’re getting at here or no?

Jameel Jaffer:

I think at a very high level of generality, yes, that is the impulse behind an opinion like this. And I’m not altogether unsympathetic to that impulse. I think it is true that social media companies, well, a small number of social media companies play an outsized role in determining who gets to speak in our society, who gets heard in our society, which ideas get heard. Facebook and YouTube, these companies have a lot of say in who gets to participate in public discourse. So, I’m on board that far. But it is also true that these companies are making editorial judgements all the time. They are deciding which speech should be promoted. They have content moderation practices that limit the kinds of speech that people can post on their platforms. They’re not like newspapers, but they’re not like AT&T either. There’s something quite different from both of those other media.

Jameel Jaffer:

And the challenge in cases like the Florida case and the Texas case, is that the doctrinal boxes that exist right now are not really that flexible and they don’t account for actors like the social media platform. So, you have to step back and think about, well, what is it that’s different about social media platforms from newspapers? What is it that distinguishes social media platforms from AT&T. And should those differences matter? And how should those differences matter in first amendment doctrine? That’s the analysis that we needed from the Fifth Circuit that we didn’t get.

Preet Bharara:

But from what I can tell of the opinion, it is not just about social media companies and trying to figure out how you categorize them as compared to newspapers or other private entities. The opinion says the following. And I wonder how crazy this is or not crazy this is. “Today we reject the idea that corporations have a free wheeling first amendment to censor what people say.” What are the implications for that?

Jameel Jaffer:

Yeah, I mean I’d be shocked if the Supreme Court signed on to a statement like that. Again-

Preet Bharara:

Even this Supreme Court?

Jameel Jaffer:

Even this Supreme Court. I mean, in some ways, especially this Supreme Court, because this Supreme Court has been highly attuned to property rights. And if you take the Fifth Circuit’s statements seriously, you’re giving government actors a lot of authority to override what have conventionally been thought of as owners with respect to their own property. But I don’t think that the fifth circuit would follow that logic very far outside of this particular context.

Preet Bharara:

So, that’s an astonishing statement?

Jameel Jaffer:

Yeah, it is astonishing, and just not a statement that I think can really be taken at face value.

Preet Bharara:

If it were, and it were upheld, hypothetically, doesn’t that statement then allow a law to be passed that would prevent a private employer or an office from taking action in the workplace if people said anti-Semitic things or racist things?

Jameel Jaffer:

Yeah. I think that’s right. I wonder what it would mean for conventional newspapers. What does it mean to say that the government can impose carry obligations on actors that have conventionally been understood to be exercising editorial judgment? I just think that it would give governments a ton of power to manipulate public discourse, to censor ideas that are disfavored, and to override the speech rights of private speakers.

Preet Bharara:

So, what’s going to happen?

Jameel Jaffer:

I don’t think that the Supreme Court is going to endorse this reasoning.

Preet Bharara:

Am I correct, as you’ve described already, that given that there’s a circuit split, similar to the law in Florida, struck down, the law in Texas upheld, at the circuit court level, does that mean necessarily that the Supreme Court will take this up?

Jameel Jaffer:

I’m not sure necessarily, but I think it’s highly likely. I think that these are issues of obvious importance. There’s a clear circuit split. These are issues that, in some ways, only the Supreme Court can clear up because they require, at the very least, an extension of existing doctrine. So, I think it’s highly likely that the Supreme Court’s going to take this, at least one of these cases, and probably both of them.

Preet Bharara:

And do you think, as you said a second ago, the likelihood is that the Supreme Court, and you said especially the Supreme Court, will strike down the Florida law and the Texas law? And if so, do you want to take a gander at what the vote will be?

Jameel Jaffer:

Well, I think that the Supreme Court is likely to strike down the must carry provisions of both the Florida and the Texas law. I don’t think that the Supreme Court is going to be comfortable with state legislatures, or for the federal government for that matter, telling the platforms what they can publish or what they can’t publish, but these laws also have those transparency and due process provisions as well. And I think that there is a really important question, how those provisions are going to be analyzed by the Supreme Court, because there’s one version. The platform’s argument here is essentially that any law that implicates their editorial judgment is necessarily unconstitutional. And I think it would be a mistake for the Supreme Court to adopt an argument that broad, because an argument that broad would preclude not only the kind of abuse of legislation that Texas and Florida have passed here, but even narrowly drawn transparency or due process or interoperability or privacy laws that would serve first amendment values and serve democratic values.

Jameel Jaffer:

So, I’m hoping… I don’t really want to try to predict what the Supreme Court will do, but I hope what the court does is find a kind of path that articulates a vision of the First Amendment that precludes the kind of must carry laws that Texas and Florida have passed here, but still leave space for other regulation that is more narrowly crafted.

Preet Bharara:

I’m going to ask you final question I asked you before we started recording, just so people can get a sense, based on your experience, how out of whack the fifth circuit opinion is. Scale of one to 10, how out of whack is it?

Jameel Jaffer:

Nine.

Preet Bharara:

Nine?

Jameel Jaffer:

Nine. It is an Alice and Wonderland opinion. I mean, it’s worth reading in a way just for that reason.

Preet Bharara:

The tone has some attitude in it, even as it does something remarkable.

Jameel Jaffer:

Yeah, I mean, it is kind of contemptuous opinion. It reads like, how could anybody come to any conclusion other than the one we’re coming to here?

Preet Bharara:

Right.

Jameel Jaffer:

When in fact, no other court has ever come to this kind of conclusion before.

Preet Bharara:

Jameel Jaffer, thank you for your time. Thank you for explaining stuff to us.

Jameel Jaffer:

Thanks, Preet.

Preet Bharara:

For more analysis of legal and political issues making the headlines become a member of the Cafe Insider. Members get access to exclusive content, including the weekly podcast I cohost with former US attorney, Joyce Vance. Head to cafe.com/insider to sign up for a trial. That’s cafe.com/insider.

Preet Bharara:

If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me @preetbharara with the hashtag, #AskPreet, or you can call and leave me a message at 669-247-7338. That’s 669-24-Preet, or you can send an email to letters@cafe.com. Stay Tuned is presented by Cafe and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David Tatasciore. The senior producer is Adam Waller. The editorial producers are Sam Ozer-Staton and Noa Azulai. The audio producer is Nat Wiener. And the cafe team is Matthew Billy, David Kurlander, Jake Kaplan, Namita Shah, and Claudia Hernandez. Our music is by Andrew Dost. I’m your host, Preet Bharara. Stay tuned.