The Supreme Court Sides With Process

Back in the saddle, Sarah and David explain the Supreme Court’s decision on Yeshiva University ...

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Back in the saddle, Sarah and David explain the Supreme Court’s decision on Yeshiva University v. Youth Pride Alliance (spoiler: this isn’t over yet). Plus: Who gets to censor who in the battle between Texas and tech platforms?

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  1. Avatar photo
    Martin

    I think a problem simmering under the surface of some of these, uh, unorthodox rulings from judges, is the divided media and social environment we live in.

    I would bet that Judge Oldham, as a political conservative, mainly consumes right-wing media. He mainly hangs out with right-wing people. The right-wing intellectual types that are likely to be part of his inner circle are likely smart and persuasive. I would hope that he’s not too drawn into the fever swamps, but you never know.

    I have no doubt that for years he has been getting bombarded with right-wing fears about social media censorship. About how unfair the situation is. How dangerous.

    So the issue gets before him, and he can try to follow his neutral legal principles, and he can truly believe he’s doing so in absolute good faith.

    But all of that programming and political persuasion he’s been bombarded with is powerful and embedded deep into his psyche. And it seeps into his work. He is very smart and very subconsciously motivated to do something.

    So he finds a way. I doubt that HE has any doubt that he is simply applying the correct law.

    Motivated reasoning is very powerful and part of its power is that most of the time we are unaware that we do it. As we continue to silo ourselves off into different bubbles, we should not be surprised as rulings like this keep coming out.

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    Andrea Leane

    Will it matter that Yeshiva University "removed religion from its charter, essentially the text that gives it permission to operate in New York State, in 1967 in an effort to secure more state funding." (https://www.jta.org/2022/09/11/ny/yeshiva-u-can-block-lgbtq-club-for-time-being-u-s-supreme-court-says) I saw this mentioned in a Julia Duin column and a Terry Mattingly column. If you don't know who they are, they are journalists who write about religion and how it's covered by news media.

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  3. Chad Souke

    If you have time in your recess from SCOTUS (although lately they seem like the child who wants to come in from recess early; to be fair, I don't know if it is b/c they scraped their knee or the other kids weren't playing with them right), please take a digression and trace the thread of Constitutionality and federalism that leads from the Constitution to the federal government (and the executive branch of said government) forgiving student debt.

    If federalism and the Constitution are still in tact, this effort seems like it should have been derailed at many steps along the way, which preclude where we are today.

    I guess you can start at Article I Section 8, but how you go from there to here is an interesting tale.

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  4. M. Adrian Canadiensis

    To pile on to the Queen & Her Corgis, and even to bring them toward the realm of the Law, this situation is an excellent illustration of "the Queen's Two Bodies": i.e. Elizabeth as Elizabeth II Dei Gratia Regina, etc. and Elizabeth as the individual.

    The Corgis belonged to Elizabeth the individual and were thus hers to dispose of as pleased (and, indeed, it does seem that they have gone to the member of the family closest to them). They were not part of the Crown and thus do not descend to the new monarch--corgis, unlike titles, do not merge with the Crown.

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    Dr. Livesey

    Sarah, I seemed to detect, twice, during the Yeshiva U discussion, you mentioning New York state courts. I could be wrong, but I thought I detected you mentioning state appeals courts and maybe hesitating ever so slightly (I have a good ear). So I'm wondering if you were thinking about one of those confusing things about New York. (It's the prettiest state in the union, at least that I've seen, and at least outdoors, but the state government is, ah, well, it's a pill. It's a pill.)

    They have a Supreme Court in New York. Actually a dozen of them. They are what saner states call appeals courts.

    So having used up the name "Supreme Court" for courts who are by no means supreme, what do they call the highest court in the state? They call it "The Court of Appeals." Because naturally. Because New York. It's musical chairs.

    They have still other appeals courts, and they call those the ... uh, well, as near as I can figure out, they're called "Appellate Divisions." Just to make them so close in name to The Court of Appeals to cause confusion.

    It's like all the court names are camouflage.

    I remembered the nub of this from past residence in the state and found the rest here:

    https://ww2.nycourts.gov/courts/8jd/structure.shtml#:~:text=The%20Court%20of%20Appeals%20is,14%2Dyear%20term%20of%20office.

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  6. TD

    I think this gives Oldham's opinion short shrift. The episode identified the important points but came off somewhat one sided without a great explanation for why he was wrong. I found Newsom's opinions persuasive and was generally skeptical up front like y'all. But this is a rather difficult issue, as who is speaking (if anyone) when dealing with broad public platforms or organizations is an inherently tricky concept. Oldham's distinction between Miami Herald and Hurley on one side and Rumsfeld and Pruneyard on the other makes some sense: on one side the organization is clearly speaking and has a message, on the other they are merely platforms and no one thinks they are speaking when they host someone. A parade and newspaper are inherently expressive, a mall isnt. So someone speaking in those contexts are viewed differently vis a vis the host. Sarah sort of gets at this, but that is a legal distinction allowing them to co-exist. That line is hard, but as Oldham points out, Congress intuitively recognized this line in Section 230. While possible to thread the needle, it is rather difficult for Twitter to say for section 230 this isn't our speech we are merely a platform but for 1A purposes we are actually a speaker and what we ban and allow represents particular views by us on what speech is appropriate. While Congress cannot define constitutional lines by statute, some degree of departmentalism would give their divide some careful thought. Or, at the very least, take it as evidence that these sites are considered platforms by congress and by their own admissions, thus factually placing them closer to the Pruneyard side of the constitutional issue.

    Now one might think Pruneyard and Rumsfeld are wrong. A simple principle that you cant force private groups to host speech may make sense. But that is the case law for now. And it makes some sense that private groups or organizations can offer public accommodations akin to a forum, like a public park. Once they show they are open to a wide swath of speech, and even advertise themselves to the public as such (like here), then government can set non-discrimination laws on them because it is not regulating their speech. That is the real difference with Yeshiva, which limits its groups as a private religious university much more closely and is open about it. Now this raises a line drawing problem and framing problem. As Newsom pointed out, they have always had terms and services and have moderated speech so how is this different than Yeshiva? I think both the ex ante v. ex post and public facing aspect of these cases plays in but Oldham's take is far from absurd or political.

    To me, the common carrier point was the strongest. Lakier (who was my professor) has an excellent article on how telegraph companies discriminated for political reasons and were then regulated as common carriers. The same is true of phones. No one thinks Verizon's free speech is violated by a regulation saying they cant cut off your phone if you discuss LGBT issues. In some ways, these massive platforms have become so important for livelihoods, culture, and communication that they fall into the same common carrier bucket and can thus be regulated. Oldham's analysis on this is quite impressive compared to Newsom's. And i dont see David's distinction of government involvement and eminent domain as the key, as telephone companies are fairly limited in such uses (especially now) and hotels and shippers dont use such clear government benefits like railroads used to. Now there are still relevant differences. On these platforms you publicly post on their site, so the world at large sees your views tied to their site where telegraphs and phones are private communications and no one likely knows what company you are using. Still, does anyone really think the Nazis and ANTIFA posts on facebook represent anything about facebooks views because they limit some conduct dealing with harassment and illegal unprotected speech?

    I think David is right that the "this is censorship not speech" framing is unpersuasive to start. obviously groups can refuse certain speech as part of their speech, like hurley. But it makes sense once one buys it isnt their speech. One just shouldn't lead with that given the right not the speak. And I think someone could find the sites dont meet these tests. But I dont think implying that Oldham was just being political is fair.

    And while not clearly presented in this case, Twitter and Facebook's recent admissions that the FBI and white house influenced them to take down posts they didnt like or deemed as misinformation raises serious state action concerns where they may actually be violating the constitution. There is also the divide in the 8th circuit anti-bds case over rumsfeld and hurley of speech v. conduct (though I dont think it was particularly strong there). 303 Entertainment, NIFLA, and many of these cases have a clear speaker, the issue is whether it is conduct. But here the divide can be seen as who is actually speaking? Is Twitter speaking at all by broad policies implemented ex post? The question of who is speaking and how a reasonable person would attribute certain actions or speech to certain groups is a hard one that Hurley doesn't obviously answer. It doesnt here. And it doesnt in the 8th circuit case.

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    1. Brian G

      As I mentioned upthread, the problem here is that the social media companies are EXPECTED to censor some speech. The common carriers are not expected to do so. So how do social media companies censor speech when they can't censor based on the nebulous concept of political speech?

      Does the circuit court even address the issues of how this law is selectively choosing which social media companies must comply with this law? Or how the companies are not allowed to leave the state?

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      1. TD

        Not sure I know what you mean. Do you mean Section 230 requires them to take down illegal speech like threat, terrorism, and child porn? Or regulations in foreign jurisdictions? To the first, the Texas law exempts policies on illegal speech and even if it didnt that is a preemption argument that I do not believe was raised. If you are saying that is a hard line or difficult for the companies to handle, that may be so but that is a policy concern not a constitutional one. The government has to deal with child porn, threats, and terrorism while not suppressing political speech too. Not that nebulous. Not more so than other issues companies have to deal with legally and lines that must be drawn. To the foreign jurisdiction issue, again not really a constitutional problem and they can geolock. Maybe there is a dormant commerce clause issue but I dont think that was really raised. The response would be geolocking but they may say balkanizing the platform is the only solution and that defeats their purpose. Otherwise their own policies are the only reason they are taking down more speech and that can be overridden by regulation.

        To the other two points, yes the court does address them selectively choosing companies and finds the size basis for the importance and as being public carriers is rationale. Makes some sense. Not allowing them to leave the state maybe raises separate constitutional issues but not clear what. Interstate travel? but they can travel freely they just have to have an online presence in texas. personal jurisdiction to enforce it? maybe once they leave but they are there now and can punish them for trying to leave. A takings? by forcing them to keep their online presence on in the state? hard to see what they took and how this isnt a normal regulation of property. These really seem to be policy concerns, which are fair, but not relevant to my points.

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        1. Brian G

          I'm saying that people arguing that social media companies are just like common carriers are making a flawed argument because of the nature of the content they handle. The type of communications they handle is wildly different, as is the number of options available for one compared to the other.

          It isn't just illegal speech. If someone were to go on their platform and promote NAMBLA, that would constitute political speech that would need to be protected. The reality is that these social media companies primarily censor speech because it is in the best interest of the products. Which is why they all have similar rules on censorship. Even Truth Social has discovered that free speech ain't what it's cracked up to be.

          As for you last graf, I don't even know how to respond to that. So Twitter, the 16th largest social media company should be regulated because..... why? You think a state can COMPEL a business to stay in their jurisdiction? I'm a bit speechless on that one.

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          1. TD

            I dont disagree that their broader terms may mean they are speakers or not common carriers. But there is nothing that draws that line and its an odd one. So by discriminating some they get to avoid all common carrier regs? Some hotels would discriminate and trains certainly would. Them limiting their product to some didnt immunize them. And what about telegraphs restricting more speech? They were regulated as common carriers. I agree the public facing aspect may matter but questioning it isnt a graf. U act like it is absurd and obvious. It isnt. Also on what basis is requiring a business to stay in state violate the constitution? Saying u r speechless is meaningless.

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  7. Brian G

    With regards to Social Media restrictions and common carriers I think there is an important factor that those who want to equate them fail to acknowledge.

    Common carriers do not have ANY censorship/editorial oversight of the use of their services. Pick up the phone and call whoever you want and you can talk about whatever you like including illegal activities. These are private communications that are not shared with the public at large.

    Social media companies MUST have some level of editorial/censorship control of the content because it is public. So even if Twitter embraces the most expansive rules for posting content they could, they would STILL be expected to censor illegal activities and other universally objectionable material.

    So Congress passing laws to determine what content can and cannot be censored means that those social media companies no longer have editorial oversight and instead that is being controlled by Congress. There is no practical way for Congress to pass a law that can determine what is and what is not appropriate so that would mean we would need.... an executive agency to determine appropriate content. That seems like a pretty bad idea to me.

    It seems to me that the people that are the most vocal advocates for regulating speech on these social media platforms tend to ignore the unintended consequences of doing so.

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    TJA

    On the Social Media stuff: This appears to be another case where the framing of the problem tends to drive toward unsatisfying options for solutions. If this is framed as a first amendment issue, the Companies get to play with a stacked deck because their legal status appears to be that they can claim the benefits/rights of being a common carrier and the benefits/rights of being a publisher, while not being subject to the restrictions of either. Legally and with regard to accountability for their actions (or lack thereof) and the first amendment they get to have their cake and eat it too. On the other side of the coin, David at one point made the observation that the government declaring them to be subject to the regulations of one or the other might be considered a taking. I guess that could be true if the Government makes the declaration. But what if it's the company that makes the declaration?

    Could the current mess be addressed by requiring these companies to make a declaration of WHAT THEY WILL OPERATE AS, so as to make their own choice of the regulatory scheme that they are subject to? The company freely chooses, but then is accountable to the regulations that apply to their choice. You could probably cover the entire waterfront with 3-5 operating categories (with "neither fish nor fowl" not available). Conceptually, this would be similar to corporate declarations (C-corp, s-corp, 501c-3, etc). I don't get to say "I'm a C-corp for liability but an S-corp for tax purposes, because, you know, I've got this cool idea that's really awesome, and it's a game changer, and trust me I'll play it straight."

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    Ian Fillmore

    This is an honest question from a non-expert. Just as I have many choices of social media companies, I also have many choices of telecom companies. I have multiple cell phone carriers to choose from, plus FaceTime, WhatsApp, and so on. So why is Verizon a common carrier while Facebook is not? (For what it's worth, I'm more open to the idea that Verizon is not a common carrier than that Facebook is.)

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    Ian Fillmore

    When you're a hammer, everything looks like a nail. And when you're a constitutional lawyer, everything looks like the first amendment. Whether it's Masterpiece Cakeshop, or Arlene's Flower, or 303 Creative, or social media censorship, the first amendment is only indirectly related. The real questions relate to economic freedom and freedom of association. Does a company have to serve a certain customer? Can the government dictate to the company the type of product it must provide? Those are the main questions at stake. Freedom of speech is implicated, but it is not the main issue.

    Now I get why litigators pursue the first amendment route rather than the economic freedom/free association route---SCOTUS is much more protective of the former than the latter. Thus we have these how-many-angels-can-dance-on-the-head-of-a-pin arguments about why custom wedding cakes are "speech" while custom flower arrangements are not. It seems to me that the right to exclude a float from your parade would be much more solidly grounded in a freedom of association than in a right to free speech (again, speech is implicated, but only indirectly). Same goes with cakes or flowers or websites. And the same goes for social media companies. Let them run their businesses the way they want. But our current jurisprudence on economic freedom/free association is ... not robust. So litigators try to shoehorn everything into the first amendment, and then the courts are obligated to consider the cases on first amendment grounds, and the cycle continues.

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