Can State Officials Block Me on Social Media?

Plus: some Breyer-flavored dessert.

By and
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Sarah and David discuss Justice Amy Coney Barrett’s opinion in Lindke v. Freed—released last week by the Supreme Court—and the test for state action on social media. Is there a constitutional right to commenting on state officials’ accounts?

The Agenda:
-Predicting SCOTUS votes for Net Choice
-Slime in the ice machine
-Justice Elena Kagan’s compelling reasoning for saying “and” means “or”
-Terrorism distortion and special needs exceptions to the Fourth Amendment
-The 5th U.S. Circuit Court of Appeals is overwhelmed
-An emergency petition on the Texas A&M drag show case
-Don’t say ‘Don’t Say Gay’ when referring to this lawsuit
-Justice Stephen Breyer and choosing pragmatism and not textualism

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Comments (81)
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  1. McGoogles

    I was taken aback by David's passing comments that (a) some states will pass laws that prevent abortions to save the life of the mother and (b) that there is a possibility that such laws would be upheld by the courts.

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    Bill Dyer (aka Beldar)

    I posted this as a comment on Mr. Catoggio's latest newsletter a few minutes ago. And I was reminded by its contents that Ms. Isgur has bankruptcy chops inherited from her dad, a universally respected (extra-, not un-constitutional) bankruptcy judge in Houston. If the subject of Trump and his supersedeas bond is on an agenda for an upcoming AO or Dispatch newsletter, perhaps she would consider commenting on this subject — particularly regarding the preferences clawback possibilities mentioned at the end:

    ====

    I'm seeing more intense speculation in this evening's national media about the possibility that, unless the intermediate or top New York State appeals courts lower the amount of the supersedeas bond or stay enforcement of the judgment without one, Trump may have to file for bankruptcy.

    They all say he's resisting that possibility. The NY Post even ran a story this morning headlined: "Donald Trump may not pay bond — and instead let Letitia James seize Trump Tower: insiders."
    Link: https://nypost.com/2024/03/20/business/donald-trump-may-not-pay-bond-and-instead-let-letitia-james-seize-trump-tower-insiders/

    I think he will find a consolidated personal and business bankruptcy the only choice that he can actually bring himself to swallow, though, notwithstanding all these speculations and reports. To expand on my original comment:

    Being a debtor-in-possession has its benefits. You get the benefit of an instant, nationwide, automatic injunctive stay of all debt collection activities against you, the violation of which can put your unruly debt collector in contempt of court.

    If he does nothing and the AG liquidates into cash (in compliance with the statutes and rules governing judgment collections in New York State) some real or unique personal property interests that Trump or his companies own, then those transactions probably can't get unwound later — not even if Trump wins on appeal (or, more plausibly, succeeds in getting a reduced judgment amount or a new trial on some issues). All he can get back is the money that the AG collected — liquidation proceeds, not the assets themselves, nor even their fair market value (as would be negotiated between an uncoerced willing buyer & seller). Trump's personal identity, going back to Fred, is wrapped up in these properties. However much he discounts his own continuous bullsh!t about their value, he genuinely thinks they're worth more in HIS hands than whatever Chubb's auditors might think. So he has to view this as putting both a huge amount of financial equity at irretrievable risk (i.e., he won't think himself made anywhere close to whole by whatever cash the AG has collected, even if it's the whole judgment amount) AND abandoning these signature properties that are the foundation of all his pretenses to be, or have ever been, among the biggest of big shots.

    If instead Trump bites the bullet and goes Chapter 11, he's the debtor-in-possession, unless and until replaced by a court-ordered trustee. His keys still fit the locks on his properties next week. Yes, he's under even MORE scrutiny, from the creditors' committees and the Office of the U.S. Trustee. And yes, he has a new set of complications, from people and businesses that suddenly no longer are willing to do business with him and indeed, are afraid that anything he's paid them in the last 90 days might be clawed back by the creditors' committees as a "preference."

    But when the board of directors and officers of Texaco Inc. concluded that Texaco couldn't any longer prevent Pennzoil from executing on its multi-billion dollar judgment from the 151st District Court of Harris County, Texas, then suddenly being a Chapter 11 debtor-in-possession — who could instantly buy time to achieve a more orderly (if still compelled) settling of its debts (including that one) — seemed like a distinctly better alternative than watching their entire business go into the toilet through piece-meal judgment executions on Texaco assets wherever they could be found.

    Bankruptcy buys Trump time, and control over his crown jewels in the meantime. He has obvious villains to blame.

    And he'll have the shortest Chapter 11 reorganization plan in history: "Just wait until I'm President again!"

    ========

    EDIT: (1) The automatic stay won't directly affect any of the criminal proceedings against Trump, nor occasion delays in them.

    (2) But a bankruptcy court is not going to care AT ALL about election calendars. Bankruptcies are rarely rushed. (Although Ms. Isgur's extra-not-unconstitutional dad is known for moving things along briskly.)

    (3) You know who might be very worried, though, about preference claims clawing back everything Donald Trump and his companies have paid them in the 90 days before filing?

    All of his lawyers.

    EDIT #2: Chapter 11 probably wouldn't work to discharge his debt to New York State, since that's based on a finding of underlying fraudulent conduct. But it would interrupt the collection process, probably altogether, while Trump pursues his appeals and tries to find a reorganization plan that lets him get better value for whatever he has to dispose of, so that his companies could reemerge in some form. See above: Trump figures he'll make this right somehow when he's back in charge of the Joint Chiefs of Staff.

    EDIT #3: WaPo:

    ===begin quote===
    As Donald Trump faces dwindling options to pay off a massive fine imposed as a result of losing a fraud case in New York, financial experts say filing for bankruptcy would provide one clear way out of his financial jam.

    But Trump is not considering that approach, partially out of concern that it could damage his campaign to recapture the White House from President Biden in November, according to four people close to the former president, who spoke on the condition of anonymity to describe sensitive discussions about Trump’s finances.
    ===end quote===
    paywalled link: https://www.washingtonpost.com/politics/2024/03/20/trump-bond-bankruptcy/

    This is what you would be saying if you intended to damn the torpedoes, let the Attorney General have her first swing at you while you have your unprotected jaw out, and hope for some sort of extraordinary and unprecedented relief from the New York appellate courts during the next two business days.

    It's also what you'd be saying if you were already desperately working in secret to arrange DIP [debtor in possession] financing to take to the court for emergency approval minutes or hours after filing — to make sure your companies would still have working checking accounts next week.

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    1. Incognito

      Thanks for that commentary. I have been curious what the range of choices are for Trump in this scenario for Trump. All of this is way out of my purview so I appreciate any information I can find.

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  4. WBM

    A thought occurred to me about allowing politicians to block other people on social media. From the description of the opinion on the pod it sounds like the court is trying to delineate between a private account or an official account. I wonder if there is a little bit of Trump distortion here. If a president wanted to be able to block people on social media, that president could not do official business on X. I'm not sure how I feel about the opinion, but I really like the idea of a president not doing official business on X

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  5. Ken Motamed

    Wow! Even David French uses "writ large" incorrectly. (It doesn't mean "in general".) At least, he has Nick and Jonah for company.

    Very good podcast, though. I particularly appreciated Sarah's book recommendations.

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    Bill Dyer (aka Beldar)

    In five years:

    HOP: "Have you finished the table-of-authorities and index for my brief? It's due today!"

    Nate: "Yes, dad."

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    Bill Dyer (aka Beldar)

    Ms. Isgur: You know Marvin Zindler and his ice-machine slime from TV and/or the Zindler-based character in "Best Little Whorehouse."

    But as a defense lawyer in Houston in the 1980s, I knew him because hundreds of consumers of various products and services sold by local businesses came to view Marvin Zindler as their personal avenging angel, and would write to him with their complaints. Some of those complaints were against clients of mine who the complainants were also in the process of suing. And so we'd duly receive a letter from Zindler's staff demanding, in his name, our response to the each such consumer's complaint.

    Our form-letter was carefully crafted to be anodyne, factual but vague, and most of all, tediously boring, always in a single page. We'd never hear from Marvin or his staff again; problem solved.

    However, our form motions in limine included for a time an item asking that all litigants, witnesses, lawyers, and others appearing before the jury be forbidden from mentioning Marvin Zindler without a sponsoring lawyer first approaching the bench and obtaining permission. This item was rarely opposed and uniformly granted.

    But yes, of all his quixotic quests, the vanquishing of the slime in the ice machines was his most famous. The Chicken Ranch had its fans, but there is no lobby for slimy ice machines.

    I actually turned it around once to use offensively myself. I represented a plumbing company that had the Houston contract to maintain the water supply and connected appliances at the Houston locations for a national mid-market restaurant conglomerate. They'd found another plumber who they liked better — one who insisted quarterly maintenance inspections and repairs would be adequate instead of the monthly inspections my client had been conducting — and thought that a good enough reason to stop paying my client for work he'd already done. My client thought that unwise, because uninspected and unrepaired ice machines develop ... slime. We didn't threaten to call Marvin's team, but we didn't have to: the phrase "slime in the ice machine" was enough to get their attention, and they ended up paying in full, plus interest, court costs, and attorneys' fees.

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    1. AD

      I grew up in Houston in the ‘90s and definitely remember Zindler’s “Sliiiiiiime in the ice machine!” expression. But as a child at the time, I didn’t think much of it other than that slimy ice machines sounded pretty gross. Your anecdotes from practicing law in Houston at that time are fascinating.

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    2. Ken Motamed

      Interesting anecdote.

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  8. Incognito

    I'm glad the plaintiffs brought enough pressure on the state to force a settlement and clarification. Wether the state intended it or not, the law had the downstream effect of undermining faculty sense of security in basic freedoms. Populism and nationalism like we are seeing often have primary or secondary effect scapegoating and silencing minority groups. And sexual minorities have been a favorite target for as long as humans have been creating culture.

    Florida's actions often fed into broad over-reactions and over-corrections across the country. My wife works in education and we've watched our local school district turn SEL programs into another scapegoat and culture war target. It just goes to show how ignorant many citizens are about public education (likely all education) and how long basic SEL strategies have been needed. Running a safe and effective classroom requires dealing things like race, sex, and religion as they commonly lead to bullying. But "tolerance" became politically coded so SEL was demonized. That just leads to worse academic outcomes and more work for overburdened teachers.

    Hopefully the current culture war comes to an end soon and we can return to a time of relative sanity. Our school children have had to endure this mess for far too long.

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    Martin

    Regarding Breyer, I think where the rubber meets the road, and what we should admit to ourselves, is that whatever philosophy you use, it still boils down to “the judge does what they want.” It’s unusual in this day and age, but we aren’t being cynical *enough*.

    Even originalism and textualism, depending on what evidence the judge credits (and how they weigh it - a completely subjective endeavor with no pretense of guardrails), can be used to reach almost any outcome in any case. And these are extremely intelligent and educated people capable of rationalizing anything. So their motivated reasoning is very powerful. I have no doubt that the vast majority of judges perform their analysis in good faith, and come away convinced that they have reached the objectively “right” answer. It just almost always happens to accord with their personal and policy preferences. How lucky!

    If you could wave a magic wand and make the entire Federal Judiciary committed to orginalism/textualism, you’d have the same outcomes we have now. Judges appointed by political conservatives will generally reach politically conservative outcomes, and judges appointed by political liberals will generally reach politically liberal outcomes. There’s no magic bullet solution to this to be found in legal philosophy, because the flaw is in human nature.

    The solution is the one the Founders understood - people are inherently fallible, corruptible, and self-interested, and so the best solution is to have checks and balances whereby other self-interested and corruptible folks will keep them in line, if only to guard their own interests.

    The current problem is that the dysfunction of Congress means there is no meaningful check on the judiciary. So we rely on the judiciary to check itself - a risky proposition. There’s a reason we still invoke Cincinnatus and George Washington as paradigms of selfless civic virtue - such folks are exceedingly rare in human history.

    We’ll see how it works out, but I’m skeptical that originalism or textualism or pragmatism or whatever can save us from what’s coming or even meaningfully forestall it. The current dysfunction of our system should be a five-alarm fire. It wasn’t set up to work this way, and in the end, this it won’t.

    The Founders were acutely aware that every single republic in history had eventually failed. They did their best to create rules that would prevent that from happening. But they were fallible. I believe an unchecked yet ever-increasingly powerful judiciary, cloaking itself in the language of objective virtue and unable to treat its fallible human nature with humility, will be one of the bullet points in future history books explaining what happened to the first American republic.

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    1. Ken Motamed

      "If you could wave a magic wand and make the entire Federal Judiciary committed to orginalism/textualism, you’d have the same outcomes we have now." Absolutely not. That's just a ham-handed defense of judicial activism.

      By the way "judge" is singular, "they" is plural. If you must use the dreaded "they," say "judges."

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    Tmdutton11

    What a treat to hear some time spent on repeating decimals! I’m a high school calculus teacher, so a large part of my job is arguing about the infinitely large and infinitely small with said 15-year-old boys. I looked up the passage referenced and enjoyed it!

    But also, Sarah…unless you embrace non-standard analysis (which is a fascinating approach but used by ~0.00000…% of calculus instructors), 0.999… is absolutely equal to 1. Fight me.

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    1. Ken Motamed

      Didn't she say that? She even went through the proof: multiplying both sides by ten, subtracting the two equations, and solving for x.

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        Tmdutton11

        She did go through that proof! She said after that though “in the end, he’s like ‘yeah, we all know it doesn’t equal one.’” Although, Sarah doesn’t actually claim anything herself, she just presents her reading of the book.

        I was mostly just trying to poke the bear a bit, maybe help the AO comment section join the elite ranks of WOW and Ayn Rand discussion boards 😂

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