Content Moderation, Machine Guns, and Trump's Trial Calendar | Crooked Media
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March 04, 2024
Strict Scrutiny
Content Moderation, Machine Guns, and Trump's Trial Calendar

In This Episode

Leah and Kate analyze the ramifications of the Supreme Court agreeing to hear Trump’s immunity case… seven whole weeks from now. They also recap the arguments in a case about whether the federal government can ban bump stocks, a device that turns a semi-automatic rifle into, essentially, a machine gun. Plus, evelyn douek joins the pod to recap arguments in a case about whether social media content moderation is censorship and therefore violates the First Amendment.







Show Intro Mister Chief Justice, may it please the court. It’s an old joke, but when an argued man argues against two beautiful ladies like this, they’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.


Kate Shaw Welcome to a special expedited episode of Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. And by expedited episode, we mean it is not really so expedited at all, just a normal episode. We’re your hosts for today. I’m Kate Shaw.


Leah Litman And I’m Leah Litman. Melissa is unfortunately out trying to locate Kate Middleton. That’s a joke. Melissa is traveling and the fact that she’s not here means she can’t stop us from putting in an extra emphatic plea to get her book, The Trump Indictments: The historic charging documents with commentary so you can read all about the charges and indictments that the Supreme Court will not let go to trial.


Kate Shaw Right. Go see what it is. They’re trying to prevent the American people from ever hearing to prevent a jury from ever deciding on. But we’re getting ahead of ourselves. Go buy Melissa’s book in the meantime. Okay, so here is a roadmap for the episode. As is probably clear, we are going to first talk about how the Supreme Court decided to get involved in the federal election interference case arising out of January 6th. We will then move to recaps of cases the court heard last week, including a couple of really important social media cases, cases about whether government can ban platforms from engaging in content moderation. And for that conversation, we’ll be joined by the great Evelyn Douek. We will also recap a case about whether the federal government can lawfully restrict bump stocks, that is, devices that convert semi-automatic rifles into essentially machine guns, which can fire hundreds of bullets with a single motion. And we will then have a court culture segment in which we’ll talk about the latest insanity, but also, surprisingly, some sanity out of district courts in Texas. So there’s a lot to cover. Let’s get right to it.


Leah Litman And first up is presidential immunity. The Supreme Court acted on Trump’s immunity claim and did democracy kind of dirty. So it’s only March although technically the relevant order came in February, but it is already time for some bad decisions. Sam Alito and the Supreme Court are in their dangerous women era and democracy. You and everyone else are in danger, girl.


Kate Shaw Yep. So listeners will recall that the DC circuit rejected Trump’s outlandish immunity claims last month in the federal case arising out of the events of January 6th. So after losing big unanimously before the DC circuit, Trump went to the Supreme Court asking for a stay of the DC Circuit’s ruling in order to allow him to seek both Supreme Court review and en banc review in the DC circuit, which would have resulted in considerable delays in the proceedings. The special counsel, by contrast, urged the court first and primarily to deny Trump’s stay application. But if that wasn’t going to happen, the special counsel asked the court to treat Trump’s filing as a request for surgery and to grant review and set the case for argument in March so that a trial could still happen before the election.


Leah Litman And after pretty inexcusably, in my view, sitting on the papers for almost two weeks, the Supreme Court granted certiorari and noted that it, quote, expedited the case for scheduling argument almost two months later at the end of April. So this next part is potentially important. The court also directed the Court of Appeals to withhold the Court of Appeals mandate until a Supreme Court ruling and, quote, sending down of judgment and, quote, withholding the Court of Appeals mandate means the trial court doesn’t get the case back, meaning trial proceedings cannot resume until there’s a Supreme Court decision, and possibly until the Supreme Court sends a physical copy of that decision to the lower courts, which the Supreme Court’s rules say would happen within 30 days after a decision in the case.


Kate Shaw Now, as to that last piece, the sending down of the order, I think the court can send that order down faster if it wants to.


Leah Litman Yes.


Kate Shaw It has done so in the past, but I think the larger point, which is of course correct, is that the decision to set the case for argument seven weeks from now definitely means significant additional delay, which is an enormous victory for Trump. Right. And one of the things that is the most baffling here is that it took weeks to issue this order, and I think no one was shocked at the bottom line decision by the court that they did want to have the last word on this presidential immunity question, rather than just let the D.C. Circuit’s opinion stand. But. I think with the passage of time, a lot of people came to believe maybe they actually were just going to let the D.C. circuit opinion stand, because if they were planning to cure the case, why not move immediately to do that? And why not move immediately to do that in light of some of their much more expeditious treatment of similar in many ways asks of the court. So compare this two weeks away and then seven weeks to oral arguments with what the court did in the Colorado case about disqualification. So they are. The cert petition was filed on January 3rd. The Supreme Court granted the case on January 5th. The case was scheduled for argument one month later. Dial the clock back a little further and you have even more striking examples. Bush versus Gore took them days to Grant, right? The Florida Supreme Court decision was December 8th. This is back in 2000. They granted on the ninth arguments on the 11th, the opinion on the 12th. Right. It’s not a recipe necessarily for the most enduring judicial craftsmanship, but it’s possible for them to move expeditiously when they think the national condition requires it. And it is very clear that they have decided that’s not the case here. Right? They said the argument won’t happen until the week of April 22nd, which means there won’t be a decision until early May at the very earliest. And to game this out in terms of what it means for a trial, the bottom line is that this decision to wait for two weeks and then schedule arguments seven weeks from now makes it pretty unlikely that there will be a trial before voting in the election starts, and may mean that there is no trial before the end of the summer and potentially no trial at all before the election.


Leah Litman And again, just to explain the details, you know, after the argument, the court will have to issue a decision, right? That’s going to take at least a week. Then they have to actually physically deliver a copy of their opinion to send the judgment down. The ordinary rule say that’s going to happen within 32 days, could happen more quickly. I don’t know, judge Chuck can said 80 some days will be required for trial preparation. It’s possible she would shorten this as well, but that’s also unclear. So if you add that up 30 days after an opinion plus 80, that’s already 110 days. So if the court releases its opinion at the end of June, that means no trial before the beginning of November. If it’s released, end of May, no trial before the beginning of October, and then the trial will happen. And who knows when there will be a verdict, because Trump’s defense team might call a bunch of witnesses and try to drag out proceedings.


Kate Shaw Yeah, so the beginning of the trial obviously doesn’t tell us when things get to a jury. So the clock, the calendar, the math here is all really, really hard for the prosecution and very advantageous to Donald Trump in particular, given his demonstrated willingness to delay proceedings and in some ways, the kind of calendar math that Leah just walked through is the best case scenario. There are worse scenarios that involve a decision out of the Supreme Court that announce maybe some kind of legal standard about presidential immunity that isn’t categorical, that requires judge Chuck in in the district court to make additional determinations before proceeding with the case. The court’s modified question presented says they are interested in the scope, if any, of immunity arising from official acts. The order specifically says, and I’ll quote whether and if so, to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office?


Leah Litman So the D.C. circuit had, I think, the best reading of their opinion, assumed that Trump’s actions were official acts. But then it also said it wasn’t really deciding whether, quote, executive immunity, if it applied here, would encompass his expansive definition of official acts and quote, so, again, it’s possible that something that the Supreme Court says would require additional determinations by the trial court about whether things fell within the scope of official acts or actions as defined by the Supreme Court in this opinion. So that’s a potential source of delay as well.


Kate Shaw Yeah. And then if that’s the case with another round of briefing and decisions in the lower courts, then any prospect of a trial before the election is decisively eliminated. Okay, so back to the big picture. The Supreme Court didn’t give Trump everything that he asked for. He had asked the court to hold the case until next term. But they also didn’t do what the special counsel asked for by way of a briefing schedule, if they were going to take the case up and the special counsel’s briefing schedule would have much more obviously facilitated a possible trial this summer. And remember that the court did not take this issue up when Jack Smith asked them to before the D.C. circuit had weighed in, even though this very term they put an environmental law case on their docket about whether to block a rule before the D.C. circuit has even weighed in on whether the rule is lawful. And in other previous cases, the court has been all too willing to leapfrog courts of appeals decisions. And one especially egregious example of this is the eviction moratorium case, where the Supreme Court vacated a district court stay. The decision invalidating the moratorium on evictions while an appeal was pending, so they were willing to reach down to a district court in order to protect landlords, but not to protect the possibility of a trial about the potential guilt of a presidential candidate for the most grave of political crimes, of literally trying to steal a presidential election.


Leah Litman I actually think there are a bunch of really egregious examples. And another one that I would put on the table is the case of Dustin Higgs. So this was one of the capital cases where the Supreme Court vacated a stay of execution to allow the Trump administration to execute people who were convicted of federal crimes during the waning days of the administration. And there are two aspects of this case that I think make it especially relevant here. One is that the government, the Trump administration, sought certiorari before judgment, right before a court of appeals had weighed in. And the Supreme Court said, yeah, we’re willing to leapfrog the Court of Appeals. And they did so right. The only reason right to hurry up is because of timing, because the Trump administration was on the way out. So unless they acted quickly, right, the Biden administration was going to come in. And Joe Biden had announced he was not going to carry out the federal death penalty. And so, again, like they are willing to modify their procedures, modify the timing in some cases. And they just made the calculus here that it wasn’t worth it to do so, and instead seemed to be running out the clock for Trump on the election interference case, which is a win for him. And I can’t help but you know, the week Mitch McConnell announces he’s resigning from Senate leadership. Like the analogy to me is Mitch McConnell might not be the worst in the Republican coalition, but he played the biggest role in enabling the worst and facilitating the worse. And even though, again, the court didn’t do the worst thing here, what they are doing is enabling someone who is a huge threat to democracy and making it possible for him to gain power, just like Mitch McConnell did.


Kate Shaw Yeah, I’m so glad you brought that Higgs example. I had forgotten about that. It is like the pressing need for speed in the courts mind was was the need to let the Trump administration execute this person some before the change in administrations. And here are the pressing need, even putting aside what they think of January 6th and Donald Trump, just the pressing need to have a trial and let a jury decide. So American voters, supporters and opponents can know what a jury made of these charges before the election. It just seems like so obviously a pressing national interest. And they are just proceeding as though, you know, they’re saying expedited.


Leah Litman Right? We’re calling it expedited.


Kate Shaw Just as we did at the outset of our episode. And that’s essentially all the urgency they can seem to muster. So, yeah, Orwellian, you might even say.


Leah Litman The court is content moderating Jack Smith’s prosecution. You also might say.


Kate Shaw You might say that, in any event. So it really does look as though they’re running out the clock for Trump on the election interference case. And it’s an enormous gift to Donald Trump that this additional delay has been introduced. And it’s also hard to square this with the court’s seeming concern about consequences in the Colorado case involving Trump and his appearance on the Colorado ballot. Right. Again, we heard at nauseum in that argument about how if Colorado could disqualify Trump, that would have all these negative consequences in terms of allowing other states to make disqualification decisions. And it would destabilize our entire election apparatus. And, you know, if their intent on owning the consequences of their rulings and I think they need to own the consequences and not hear this, the consequences, the delay in a trial and the possibility of elimination of a trial before the election. And, you know, again, I don’t want to repeat myself, but even though a trial sort of feels like an abstraction, we are literally just talking about giving a jury and the American people the chance to know whether Trump is guilty of trying to unlawfully remain in power after losing a presidential election, which seems like irrelevant piece of information as he is seeking to again win a presidential election. And yet, I’m not sure we’re going to ever see a verdict on this case.


Leah Litman No. And to be clear, the Supreme Court is not the only one to blame here. Right? Like the attorney general, Merrick Garland took years to appoint a special counsel, meaning indictments didn’t come for several years until after January 6th. Really? Only when Congress had forced their hand right with the January 6th hearings. And I think, honestly, part of where the attorney general, you know, went wrong is not recognizing the Supreme Court and maybe the courts in general for what they were and were likely to do, not anticipating that they would, right, if given the opportunity, give this delay and create the possibility of letting Trump, you know, roll out the clock.


Kate Shaw Yeah. So can I ask before we leave this topic? So we’ve talked about the seven weeks until the arguments. What about the two weeks like do you have theories for what caused this delay? If they were going to take the case, why they didn’t just take it two days later, like the Colorado case?


Leah Litman You know, I think there are some reasonable explanations and then some more concerning ones. And I think the reasonable explanations are it’s in like somewhat of a complicated posture where you have a state application from a party who’s not seeking certiorari, and then the party responding says treat it as an application for surgery. So there’s probably got to be some interim discussions among the justices about, should we treat this as a state application when the party seeking the stay didn’t seek CERT? And if we are granting certiorari , what do we do with the state application? What do we need to do to modify, like the D.C. circuits mandate and the briefing schedule? So there are some things to sort out. I don’t think it’s two weeks of things to sort out. Instead, I think like probably what happened is there were a fair number of. Justices who wanted to give Trump everything he wanted, and that was their initial position, whereas other justices wanted to do something more reasonable. And so there was a negotiation. And what result is a compromise? And some people have asked about the logistics for how this might have happened. There aren’t clear rules, but a few parameters seem worth reminding listeners. So granting the stay that is just like keeping on hold the DC circuit’s decision indefinitely until Trump sought further review that would have required five votes. Granting cert requires four votes, right? So it’s possible some justices wanted to stay, but there weren’t five votes and at least for granted cert teeing up these discussions about scheduling. And there really isn’t a specific procedure for how to handle that. The scheduling the chief takes the lead, but what goes on from there is just less clear.


Kate Shaw Yeah, and if it’s the chief taking a lead and it’s face eating leopards that he needs to try to corral, maybe it just takes two weeks to actually get.


Leah Litman Or democracy eating leopards, right? As the case may be. Yeah. But, you know, just worth underscoring again. Like nobody is coming to save us and this democracy and the court has made clear its will get in the way, and that it is a huge problem for democracy, and that, unfortunately, just needs to be baked into people’s decisions about what to do in the political system right now.


Kate Shaw Yeah.




Kate Shaw And on that positive note, let’s turn to the cases the court heard argued last week, which are about whether the court is going to mess up social media, and also whether it might intervene to undo one of the small pockets of federal gun control that still exists. Last week, the court heard arguments in the net choice cases. That’s shorthand for a pair of cases challenging a pair of laws one out of Texas, one out of Florida that regulate social media platforms by prohibiting certain forms of content moderation. Put differently, these laws force social media platforms to host speech, even speech they find destructive or possibly dangerous. Now, as listeners have probably noticed, there has been a firehose of legal news in recent weeks, so we actually haven’t had a chance to do any kind of in-depth previewing of these cases. And so we’re going to spend a good amount of time on them here. And to help us sort through these cases and the issues that they raise. We are delighted to be joined by law and technology scholar Evelyn Douek, an assistant professor of law at Stanford Law School and a terrific thinker and writer on all the issues these cases raise. Welcome to the show, Evelyn.


Evelyn Douek Thanks so much for having me. Long time. First time. It’s a real pleasure.


We should also note that Evelyn hosts their own podcast moderated content, which we can only assume Evelyn is about Eugene Debs and how the government, threw labor organizers and draft buffers in jail, since that’s what content moderation needs.


Evelyn Douek It’s a deep history of the history of content moderation in the United States, from the founding to the present. That’s, that’s our coverage.


Leah Litman Alien and Sedition Acts, right? Basically content moderation. So more and more seriously, Evelyn, I don’t worry, listeners, this inside joke will become more clear once you hear Sam Alito’s pleasant voice. What do the challenge laws in these cases do, and how could they potentially change social media?


Evelyn Douek Yeah, great. So I mean, one thing that became clear during the oral argument on Monday is that apparently no one really knows, what the laws do, in their actual operation. Because these were pre enforcement facial challenges to the laws, which I’m sure we’ll talk about. They haven’t gone into effect. No state court has interpreted their provisions and they are, shall we say, not the most carefully drafted laws. So a lot of Monday was spent guessing at exactly how these laws would operate. And you know, who they would even apply to? It was a big question that kept coming up. But at a high level, as Kate said, the states weren’t shy about saying that the purpose of these laws was to prevent platforms from doing some of the forms of content moderation that they currently do, and they each do this slightly differently. So Florida’s law prevents social media platforms from moderating any content posted by a journalistic enterprise or content by or about a candidate for public office. Three guesses who they were thinking about, when they wrote that provision. And they also, they also Florida would also require platforms to do content moderation in a quote unquote, consistent manner. And Texas law essentially says that platforms can’t engage in viewpoint discrimination when they moderate their users or their users content. As the Fifth Circuit put it, basically, Florida’s law prohibits all moderation of some speakers, while Texas law prohibits some moderation of all speakers. So in theory, what those states, suggested that the laws would do is something like if a platform’s going to allow pro-vaccine speech, it also has to allow anti-vax speech or if they are boosting pro-choice speech. They better also be boosting pro-life views. That’s the sort of theoretical application. But, you know, one of the things that came up in oral argument on Monday, too, is that, you know, this is the real world, and it’s not actually clear that these laws would result in platforms allowing a lot more speech if they went into effect. Because some of the the content that they take down is so distasteful to their users and more importantly, to their advertisers. For example, if we’re talking about, you know, content from ISIS and terrorist content, things like that, that advertisers just don’t want their ads appearing alongside, platforms, the answer might be, well, we’re just not going to allow anyone to talk about terrorist content at all, whether they’re being, you know, arguing for or against, and they’ll take down the entire subject matter. Or as net choices lawyer Paul Clement suggested, we might say, let’s do only puppy dogs in Florida. At least until we can get this straightened out. Because, you know.


Leah Litman That’s called Instagram. But okay.


Leah Litman Your Instagram is a lot more, I guess friendlier than than the mine.


Leah Litman It’s a dogStagram.


Kate Shaw Leah has the most wholesome Instagram feed of anyone we’ve ever met.


Evelyn Douek I think about that for two seconds, and now it makes a lot of sense actually.


Kate Shaw It’s Stevie’s feed. Stevie Nicks’ feed is very pure, but most of it, most of the time. That’s not actually what a feed on social media looks like. And that was the sort of potential end result that Paul Clement, one of the lawyers for the challengers suggested would follow from allowing these laws to take effect, that essentially it’d be intolerable to be required to host this, like so-called balanced speech. And, you know, another example that Clement gave that I thought helpfully illustrates the problem. ISIS is obviously a good one, too, but it would require platforms that hosted suicide prevention content to also host suicide advocacy. I mean. These would be intolerable things for platforms to do. And so what Clement suggested was it might just lead to the end of any useful version of a social media platform if platforms had to comply with these laws. So, so that’s about kind of practical consequences. Let’s take a step back though, and talk just kind of generally like what are the constitutional arguments that Paul Clement, the platforms in general are making against the permissibility of these laws?


Evelyn Douek Yeah. So the platforms a central argument is that content moderation is a First Amendment protected activity. So it’s just like the editorial choices that newspapers make when they decide what goes into their products. That’s all the platforms are doing when platforms write and enforce their rules. They are, you know, speaking for the purposes of the First Amendment. So when they choose what material to allow on their sites or when they arrange and rank that material and uses newsfeed to, you know, highlight some stuff over others, all of those choices are expressing their values and the kind of content that they want to be associated with, and that that’s a right protected by the First Amendment. This is the kind of decision that newspapers and bookstores make all the time, when they’re choosing what content to serve their customers and that there’s a long line of First Amendment precedents protecting these kinds of entities when they curate, arrange, and present other people’s speech to audiences. The reason why people get so worked up and angry at platforms for their content moderation choices is precisely because they understand them to be expressing a viewpoint and making a value judgment when they make those choices.


Leah Litman And specifically as to whether the platforms are actually expressing a view, you know, through content moderation. I thought Justice Kagan illustrated with a real world example, how content moderation and algorithms really does affect the product on social media, that is, feeds that people see, hear, and read. So let’s play that clip here.


Clip This is a real world example. Twitter users one day woke up and found themselves to be X users, and the content rules had changed and their feeds changed, and all of a sudden they were getting a different online newspaper, so to speak, in a metaphorical sense every morning.


Kate Shaw So I think that does drive home, if it all seems kind of abstract, if you’ve used Twitter X or other platforms, like maybe, maybe it does kind of start to land. Why it does matter that there be some degree of editorial control. So I guess, Evelyn, maybe will you also walk through why the states say these laws are constitutional and maybe just to take a beat on the kind of political valence which, you know, you alluded to the kicking Donald Trump off of Facebook and Twitter was the impetus for these laws. But they also seem to be somewhat animated by what they perceive as overpolicing to eliminate anti-vax or.


Leah Litman Election denialism.


Kate Shaw Election denialism. Right. So so it is obviously these are red states that have enacted these laws. And so maybe this goes without saying, but that’s essentially the political backdrop. But of course, that’s not precisely the arguments that the states are making in the Supreme Court in defense of their laws. So what are they saying about why these laws are permissible?


Evelyn Douek Yeah. So the states both argue essentially that this is conduct, not speech. There’s nothing to see here. First amendment, let’s move on. Thank you. Nothing to see here. They essentially say, like, platforms are much more like telephones or mail carriers, that they facilitate people’s communication, but they aren’t themselves speaking when they host and distribute content. So because they’re not speaking, their business activities can be regulated just like any other normal business activity, and they can be subject, to antidiscrimination norms that, you know, we don’t want, businesses discriminating based on viewpoint. And so, you know, one of the things that’s really interesting about this case, too, to note here, is that both sides are really claiming the mantle of free speech. Like, this is not like there’s one pro free speech side or one anti speech like, oh, we need to suppress the speech side. Both sides come in and say we are here in the interest of free expression. And so the platforms position themselves as the speakers and say we deserve protection under the First Amendment from state interference. And that, you know, if the First Amendment means anything, it means protection from the government and the states instead position themselves as a champion of free speech. But for the users, for the people who use the social media platforms, who are, in their view, being, censored by the platforms.


Leah Litman So we’ll try to, you know, sort out these kind of competing free speech claims in a second and how the court, you know, received them. But just quickly, by way of procedural history, the Court of Appeals for the 11th Circuit, you know, struck down the Florida law, concluding it could not be enforced. The Fifth Circuit upheld the Texas law because, of course, and then in 2022, divided Supreme Court, stayed that Fifth Circuit decision, which had the effect of preventing the Texas law from going into effect. The Supreme Court’s decision had an odd breakdown with a chief justice, Justice Kavanaugh, Justice Barrett, voting with then Justice Breyer and Justice Sotomayor to stay the law. And that’s, of course, some indication about where at least some of the justices might have been leaning going into the argument. So with that kind of backdrop, Evelyn, you know, any high level reactions to the argument you came away from will obviously go into some of the more specific details later.


Evelyn Douek Yeah, I mean, the arguments were way more interesting than I anticipated, honestly. So from what I’ve said so far and, and. What you just said. You know, you you might have gathered that the parties came in with these really extreme positions, right? And the two lower courts, the circuit split, staked out those two extreme positions as well. One on the one hand, either platforms can pretty much never be regulated according to the platforms themselves in the 11th circuit. Or they can always be regulated just like any other business, according to the states in the Fifth Circuit. And there wasn’t a lot of nuanced conversation about the vast, vast space in between those two positions. But a significant number of justices seemed very interested in that vast, vast space, between those two positions, and didn’t seem to want to take such an extreme stance, particularly, you know, in this early position with this sort of facial challenge, without knowing what the laws do and without knowing all of the facts of how they might apply. And we’re looking to proceed more cautiously and to try and find a middle road, through the thicket. And I think there was, you know, this real appreciation not from not from everyone, but from enough justices, that this stuff is really tricky and important and that we might want to take things slowly and not back ourselves into a First Amendment corner that we can’t get out of in a fast changing world.


Kate Shaw So that’s really interesting. And it touches on both the merits questions that the case or the cases raise, but also the remedy questions like if the court is going to do something here, what should it do if it’s not, just let these laws stand intact or strike them down in their entirety? How should the court think about how to proceed? So maybe let’s divide those two out. Start with merits. And then we’ll turn to remedy. So the merits question, just generally speaking, whether the justices think these laws infringe social media company’s First Amendment rights of speech and expression. Let’s start by playing a couple of clips. And I think maybe let’s start off with a clip from the Chief Justice seeming to suggest that the law or the laws violate the company’s First Amendment right. So right out of the gate, he sort of likened the laws to prototypical First Amendment violations, which you can hear in this clip.


Clip Council you, began your presentation. We’re talking about concerned about the power market, power and ability of the social media, platforms to control what people do. And your response to that is going to be exercising the power of the state to control what goes on on the social media platforms. And I wonder, since we’re talking about the First Amendment, whether our first concern should be, with the state regulating, what, you know, we have called the modern, public square.


Kate Shaw And we already played a little bit earlier the Kagan clip that likens social media companies content moderation policies to editorial discretion. That framing also suggests that she, too, thinks these laws trigger First Amendment scrutiny. Now, we’re not suggesting that they don’t have any hesitation with respect to remedy, but at least on merit questions. They did seem to be quite concerned about the First Amendment implications of the law. And here is Justice Sotomayor staking out a similar view.


Clip I have a problem with, laws like this that are so broad that, they stifle speech. Just on their face.


Kate Shaw And then finally, Kavanaugh and Barrett seem to be with this group as well. We’re in the interest of time not going to play clips, right now because they will tee up some other issues we will want to talk about later, but that’s at least five for, you know, some real concerns about the First Amendment and the kind of tolerability of the law under Basic First Amendment principles.


Leah Litman And Evelyn, you mentioned that not all of the justices necessarily appreciated the nuance, right, in these issues. And there were some justices who were very obviously sympathetic to the laws, kind of in their entirety, and that was mostly Justices Thomas and Alito. Shocking, I know, but Justice Thomas, for his part, seemed to question whether the social media companies were speaking or engage in expression through content moderation. He kept asking, what are you saying? Or what is an algorithm saying? Since of course, everyone knows the only true expression and protected speech under the First Amendment is baking cakes, but only for straight weddings and making wedding websites again, only for straight weddings. But then Sam Alito, he really showed up this week at oral argument because he downed a few red poles and got a true conservative grievance warrior mode. So we’re going to play a clip and then unpack it. And this is the one I was teasing Evelyn about in the intro. So here you go.


Clip There’s a lot of neat terminology bouncing around in these cases. And just out of curiosity, and one of them is content moderation. Could you define that for me? So, you know, content moderation to me is just editorial discretion. It’s a way to take the, the all of the content that is potentially posted on the site exercise editorial discretion in order to make it less offensive to users and advertisers. Is it anything more than a euphemism for censorship? I want to just ask you this. If somebody in 1917 was prosecuted and thrown in jail for opposing U.S. participation in World War One, was that content moderation?


Leah Litman Evelyn, we assume you’re going to be playing that Aledo clip to instruct the young minds of America how the First Amendment works.


Evelyn Douek Yeah, I think that’s right. It’s really going to make, real for my students. The great threat, that that, previous dissidents, historical dissidents faced, when, when, being subjected to these laws. Yes.


Leah Litman Yeah. So, there’s a lot going on in this clip. I can’t help but just offer a few thoughts. I want to make clear that, listeners, you did actually hear Sam Alito likening Facebook and YouTube, removing certain posts to the federal government, locking up labor organizers for opposing the United States participation in World War One. This is a reference to the case of Eugene Debs, whose conviction the Supreme Court upheld under the Espionage Act. Sam, you know, in case it helps Facebook jail isn’t real jail like I recognize posters got a post, but, and Sam Alito would know. But, Facebook is not actually the government. And yet this was not stopping Sam and I also, if anyone was going to uphold Eugene Debs conviction for labor organizing and, you know, opposing U.S. involvement in World War One, it would be Sam Doss copied Alito. Alito, right. Like this guy was a lone dissenter in a bunch of free speech cases ranging from U.S. versus Steven Snyder versus Phelps. He’s written so many anti-labor decisions, so on and so forth. And this moment just was the moment of the case for me.


Kate Shaw Didn’t didn’t it call to mind Kyle Bragg, who had formerly been the leader of the New York union that’s part of SEIU, basically instructing Sam Alito to get the working man’s name out of his mouth when Alito was basically making a similarly cynical point in the gun case brew. And during that oral argument, it was it was it had such echoes of that to me.


Leah Litman Yeah. I heard Kyle Bragg’s voice in my mind.


Kate Shaw As as Alito was asking the question, it was also, you know, he doesn’t invoke Orwell in the clip we just played, but his suggestion that there is something deceptive and misleading about the very label of content moderation that, in fact, something much darker is afoot on the part of these platforms. I don’t even know how many times he invoked Orwell, but it was just like, I’m not sure. I’m not sure. Again, I think the metaphor actually there might be something to it, but I don’t think that what’s Orwellian is the companies. I think it’s the states. Right. But you’re close. Damn, you’re so close. But in any event.


Leah Litman Or Alito himself. Right. His euthanizing content moderation to Eugene Debs is Orwellian.


Kate Shaw Or will you? Okay, so it was in the neighborhood. He just needed to sort of shift shift things slightly. But so in any event, Alito was in rare form. And there’s more to say about merits, but that is a kind of a rough rundown, I think, of where the justices were on the merits, but we do want to complicate them a little bit. As and you already started to do we were a law professors, and we can’t help note some of the aspects of these cases that are definitely more complicated than they might seem. At first blush, I think we at least, leonine Evelyn, I presume you do as well think that, you know, these laws as written are obviously unconstitutional in important respects, but that doesn’t mean that this is an easy or simple set of issues or set of cases. And one of the potential complications isn’t about top line constitutionality, but just a complication in the case relates to an issue that was part of two cases the court heard last term, which is Twitter versus Tumblr and Google versus Gonzalez. So those cases partially concerned the breach of section 230, a provision in the Communications Decency Act that insulates certain social media companies from civil liability if they’re engaged in content moderation. And the court didn’t say anything about section 230 in those cases. Right. It just decided that social media companies weren’t liable for other reasons. But some of the justices, including Justice Thomas, thought that the social media company’s arguments in the cases we’re talking about today were inconsistent with their representations or arguments in the section 230 cases, since here the companies are saying that we are publishers, right. That’s what we’re doing exercising editorial control. And there they aren’t, at least for certain purposes, in that you can sue publishers for materials that they publish. So I’m curious, Evelyn, what you made of that? Is there tension or inconsistency between the section 230 issue? Even if not like the cases as they were decided last term and these cases.


Evelyn Douek Yeah. So I think, Paul Clement and Solicitor General Prelogar like medals for patience. Honestly, for the number of times they had to slowly and gently, totally, correct, totally fantastical accounts of the history of section 230. It was really very impressive. Because, you know, there’s nothing at the least inconsistent between these two positions. And in fact, it’s directly the opposite. It’s precisely because the common law position is that publishes, speaking for First Amendment purposes when they choose to publish the content, that they choose that section 230 is necessary because in the early days of the internet, a court found that platforms could be liable for the content, of users on their services if they engaged in any kind of content moderation, and that that liability would either disincentivize them from content moderating at all or force them to moderate way too heavily, in order to, you know, overall, be risk averse and avoid any chance of liability. And Congress didn’t like that policy outcome. And so Congress took the view that instead. What they needed to do is provide platforms with immunity in the form of section 230, precisely so they could moderate without fear of liability. It’s, it’s reaction to, that that position that makes section 230 necessary.


Leah Litman And the section 230 cases included, this moment in Google versus Gonzalez that we wanted to play, which was a rare, recognition of humility among the justices.


Clip On the other hand, I mean, we’re a court we really don’t know about these things that, you know, these are not like the nine greatest experts on the internet.


Leah Litman So it seems like that’s a rationale the justices should keep in mind for these cases, too. There are also some other through lines worth flagging here. As far as how these cases relate to other matters, the justices have decided. One is, as you noted, Evelyn, you know, the state sought to depict these laws as basically public accommodations laws, anti-discrimination measures. And some of the justices were receptive to this idea that the social media companies are essentially businesses that hold themselves out as willing to do business with the public and with anyone, and therefore they should have to post content, right? Any content from anyone, no matter what it says. To which we say, do you remember your decision last term in 303? Creative. Like the decision that literally said a business who holds himself out to the public can’t be prohibited from discriminating on the basis of sexual orientation in some applications and in some cases. But more generally, I feel like there is a category er in thinking about these social media companies as common carriers with respect to content moderation, because there’s a difference between removing content based on what a post says versus who the user is or status. And this just seemed to go right over their heads for whatever reason. But I think the more interesting parallel for me is a contrast between these cases and campaign finance, because the Texas and Florida laws seem to be based in part on an equalization rationale, the idea that social media companies are not giving equal airtime or fair shakes to unhinged views like the 2020 election was mired in fraud or ivermectin cures, Covid, etc.. And the Supreme Court has rejected the idea that government gets to equalize airtime in the marketplace of ideas in the campaign finance space, like in Citizens United. So, Justice Kavanaugh, channel this logic, you know, as a way to invalidate the Texas and Florida laws. So, Evelyn, I guess I would be really curious to hear how you think about the relationship between these laws. Right. And the theory in Citizens United. And you know that as a possible rationale for invalidating them.


Evelyn Douek Yeah. Great. I mean, one of the things that I find so fascinating about these moment and these cases, is that the politics are all really weird and scrambled. Right. So Genevieve Lake here and I have written about this about, you know, the fact that exactly as you’re describing, Leah, until very recently, it was conservatives who are most closely associated with and responsible for this deregulatory tilt of the First Amendment and the idea, the embrace of the really privately owned and operated marketplace of ideas, that what the First Amendment means is that the government gets out of the way and, and, you know, the rest sort of happens and pans out as it does. And progressives, meanwhile, were the primary critics of that approach and the sort of expansive discretion that it grants to powerful corporate actors and the distortions that that creates. And the campaign finance cases are the, you know, epitome of that dichotomy and that divide where the the conservative justices were leading the charge against the regulations that were trying to remedy, these distortions in the economic marketplace that led to the distortions in the marketplace of ideas and the liberal justices who had a more positive view of what the First Amendment allowed in terms of seeing regulations as a way to enhance and not only abridge free speech. And now things have gone topsy turvy, right? You have these Republican states passing these laws to regulate large business, enterprise and enterprises and amplify certain voices, that they worry otherwise being squelched in the marketplace of ideas and that their main audience on the court of the court’s most conservative members, they’re the people that that these Republican states are talking to. And that’s why, you know, when I said that the the arguments were more interesting than I expected, I was this is why I was really happy to hear the liberal justices aren’t necessarily, going to fully and completely buy into the libertarian vision of the First Amendment that the platforms will offering that Justice Kavanaugh every so often would jump up, pop up in the middle of argument, and remind us that what the First Amendment says is no abridgment of, of speech by the government. And so we’re not talking about the government like, what are we even doing here? And, you know, Justice Kavanaugh’s idea of an ideal speech environment is not my idea of an ideal speech environment. And, you know, I don’t I don’t think that the only threat to free expression can ever come, from the government. And so I hope that we can come up with an answer to the First Amendment in the digital age that isn’t just, well, you know, government backed corporations. Fine. Let’s, let’s let’s move on.


Leah Litman Yeah. And I think part of the dynamic that you’re referencing is really about whether these social media companies are just like any old company, right? And if they are engaged in speech, it doesn’t necessarily mean nor should it necessarily mean that the government can. Touch platform policies at all. Right. Justice Jackson asked about this at moments because the logic of the social media companies position that everything they’re doing is expressive in any attempt to regulate them, necessarily regulates on the basis of speech, could limit the government’s ability to require certain forms of content moderation, perhaps to make social media companies safer for children or less susceptible to hate speech, right? Or less susceptible to misinformation, etc.. And so the Texas solicitor general talked about this a lot, although much less eloquently than you did, just now, Evelyn, because, he invoked an internet meme that I, I just feel the need to play here.


Clip You know, the expression, like, you know, sir, this is a Wendy’s. There has to be some sort of way where we can allow people to communicate.


Leah Litman Sir, this is, in fact, a Wendy’s, I, you know, whatever.


Evelyn Douek I mean, it’s not the most incorrect thing he said all day, so.


Kate Shaw Yes, it’s good. Let’s pivot now to the issue of remedy. And so, you know, I do think the remedial discussion was, as you alluded to earlier, Evelyn, informed by, maybe a surprising degree of sort of nuance. There’s a lot of concern about these laws violating the First Amendment. But, you know, and maybe there were some real qualms about upholding an injunction that invalidated the law on its face. And maybe just a definitional point for listeners who aren’t steeped in the terminology, a facial challenge just means the plaintiffs brought this case essentially saying the law can’t be applied to anyone, about anything the law might cover. And they ask the court to invalidate the law on its face, basically meaning that it cannot be applied at all. And that some of the hesitations seem to come from the fact that the Supreme Court has some cases seeming to say that in order for courts to invalidate laws on their face, courts have to conclude that there are no valid or legitimate applications of the law. Now, I think when you probe, it’s pretty clear that actually those cases don’t even really mean what that short distillation suggested. And they don’t properly apply in a First Amendment case like this. Courts haven’t use them that way, but that at least seem to be getting more serious attention. That idea that laws shouldn’t be invalidated on their face if they could be legitimately applied in some circumstances. So what Elon, did you make of, of that? Like what possible valid applications of these laws might there be? And does the existence of some potentially valid applications undermine the case for essentially facially invalidating these laws? Right. Wiping them away in their entirety?


Evelyn Douek Yeah. I mean, this was an area of a lot of confusion and back and forth during the, the argument, and it was really a product of the really extreme positions that the parties had taken all the way through the course of this litigation from, from the get go, this idea that it’s either completely valid in all applications or completely invalid in, in every application. And so the court that clearly a number of justices who weren’t agreeing with that position was they were, you know, concerned. Well, what do we do? When when we don’t want to adopt either of your extreme positions? Two buckets of, like, potential, constitutional applications. So these laws came up during oral argument. The first, was primarily in relation to the Florida law and the idea that it might apply to non expressive businesses as well. So, platforms like Uber, Venmo, Dropbox, Amazon Web Services or online marketplaces like Etsy, to the extent that they’re just facilitating the sale of goods, the idea that, you know, these platforms aren’t primarily in the business of providing a speech product, and so the constitutional issues are going to be different there. Now, Texas doesn’t, cover those platforms, or at least it was saying in oral argument that this is only applying to to speech platforms. Which brings us to the second bucket of possible valid applications of those laws, which is that a number of justices seem to be agreeing. I think, you know, I counted four at least, that, you know, this these laws would be unconstitutional as applied to the paradigmatic social media platforms and their news feeds, like to the extent that they’re curating and arranging content in people’s news feeds, that, that seems problematic as a matter of the First Amendment. But once you move away from that to other parts of the social media platforms that operate much more like common carriers, they’re not sure what the what the, constitutional, analysis is there. So we’re talking like DMs, maybe WhatsApp, email, Facebook marketplace, this idea that, you know, you can’t just bundle everything together, all of these different kinds of functionalities, all of these different kinds of apps, basically, as long as you have like the same logo at the top of the to the top of the page, you can’t just then say, well, we’re all, you know, it’s all First Amendment protected and it shield all of it. Because that would just sort of it would be a workaround to get around the regulation to just sort of bundle it all together. Solicitor General Prolog, I gave this great analogy of Amtrak. You know, she said that you can regulate Amtrak like a common carrier with respect to the transportation of, of passengers. But if it creates some kind of magazine for the passengers to pursue, that’s entitled to full First Amendment protection. But the converse is also true, right? Like just because Amtrak produces a magazine doesn’t mean that suddenly everything else it does in its business, is entitled to full First Amendment protection.


Leah Litman Yeah. So that is a great point to highlight. And while I agree with you that there was more nuance in particularly the merits discussion than even I was expecting, the remedy discussion frustrated me because. As a federal courts person, like the idea that a law is only invalid on its face if it is invalid in every single application, is just not actually the standard that the court has applied in facial challenges. Richard Fallon has a famous article that the court has cited right for facial challenges, fact and fiction that show this isn’t true. It’s definitely not true in First Amendment matters, you know, like over breadth or vagueness. Paul Clement specifically noted this right, that the court has applied a different standard.


Clip In the First Amendment context, as my friend was indicating. The question is whether or not the statute has a plainly legitimate sweep. So it’s not the Salerno. If there’s one little application somewhere, that’s enough to save the statute.


Leah Litman And then right, there are also ways to say facial relief could be warranted here, since if the purpose of these laws is to force publication of certain content, then they would be invalid in all of their applications. So and then you have the fact that, like if these laws sweep more broadly right than they have to, that’s not necessarily like a good thing. As Paul Clement, you know, pointed out, as far as the incentives it creates for states. So we’ll play that exchange here.


Clip First of all, that’s not the standard. With all due respect, I mean, this court has never applied the Salerno standard in a First Amendment case. And this would be the worst First Amendment case in this court’s history if you started down that road, because you can always put in some provision into a statute that’s innocuous. And then you say, well, there’s a couple of fine things in there. You look at it section by section, and these sections are pernicious from a First Amendment standard. Can’t have content about a political candidate. There’s no constitutional application to that.


Leah Litman So at various points, the justices really seem to be asking the lawyers, challenging the laws, how do we do this? Is there a way out? Right? Can we find the laws invalid with respect to these big social media companies newsfeeds? Can we say the law is on hold while maybe you narrow the injunction, etc.? And this came up not only during the argument of Paul Clement, but also, you know, Solicitor General, pre logger, and they really seem to be searching for a way to keep especially the problematic application of these laws on hold, while not necessarily determining their full scope when that was unclear I don’t know. Was that your read, Kate?


Kate Shaw Yeah. And also I mean that I think would be a properly sort of humble sort of way to proceed here because the places I got really uncomfortable, among others, I guess, during the arguments were when you had the justices just spitballing about their own experiences with, like, Etsy. And it was like, this is this cannot be the basis for reasoned decision making is I was on Etsy or sometimes I IDM or I use Uber and it was just like, I can’t I can’t believe that the conversation is happening at this level. So I thought the Clement was, strong in his suggestion that leave these, leave the injunction in place. And during the trial, you know, there had not been real proceedings that would have allowed a trial court to really examine these kind of questions of application in a nuanced way. And so maybe a narrowing of an injunction could happen down the road. But for the court itself to write an opinion that seeks to do that based on the thinnest of records and purely anecdotal experiences of the justices, seemed to be wildly irresponsible, which doesn’t mean they won’t do it. But at least I thought Clement was urging them in a constructive way, in a different direction, and hopefully one where they don’t say things that would, you know, forever seem to insulate these companies from any kind of government regulation, because I do think that’s why you had some interesting cross pressure dynamics on display was like, these state actors are very, very suspect. These laws are deeply suspect. But these tech companies are dangerous too, right? So there are not really good actors here. And so, so I think that a huge decisive win for either side is actually not great for democracy and our kind of collective discourse. And so that I think is the challenge in these cases.


Leah Litman So, Evelyn, any kind of final thoughts to leave our listeners with as far as what to look for when the court eventually releases an opinion in these cases?


Evelyn Douek I think it will be really interesting to see how they craft the remedies question, because, you know, you’re right. Paul Clement was sort of urging them and urging them to be, narrow and cautious here. But they were sort of scrambling because that is not how this is being litigated. You know, the states didn’t, defend these laws on the basis that they had other possible constitutional applications. And the platforms came in swinging. They didn’t like they were, you know, changing position on their feet, during oral argument, because it was clear that there were enough justices that weren’t buying their position that, you know, these laws are, unconstitutionally motivated and therefore you need to strike them down entirely. But it does leave the justices in this awkward position of like, not you know, there were all of these questions about like, is this even properly before us in order to, to answer these questions? I will say, you know, it’s a little surreal to be talking about these laws in this way, as if the they’re not the product of the culture wars that they were. I mean, these laws were passed by Texas and Florida because they were angry at the big platforms of what they were doing in their news feeds. And they were not shy about saying this. And so it’s going to be kind of bizarre if they are now somewhat saved by the fact that they were poorly drafted and also possibly potentially unintentionally, apply also to Uber or the Facebook Marketplace or DMs or something, which is not the purpose of these laws. But, you know, I still kind of am really happy about that outcome because I do think we need to be cautious here. And I was worried that these what should be fairly easy cases, for First Amendment purposes, might end up making bad law because they are easy and they lead to overbroad statements by the court.


Leah Litman Yeah. The possibility that you just noted seems to be the opposite, or maybe the inverse of malevolence tempered by incompetence, where it’s like malevolence aided by a cop.


Evelyn Douek Right? You gotta win one sometimes, right?


Leah Litman Exactly, exactly. Well, thank you so much, Evelyn, for joining us. Listeners, if you want to learn more, listen to Evelyn’s podcast, Moderated Content for more fulsome discussion of these cases and other issues.


Evelyn Douek Thanks very much.




Kate Shaw This was a really big week for arguments at the Supreme Court. The court also heard arguments in Garland versus Cargill, a case about federal restrictions on bump stocks, that is, devices that can transform semi-automatic rifles into machines that can fire hundreds of bullets per minute. And before we get into the bump stock rule and the argument in this case, here’s the background. So federal law restricts and has long restricted machine guns. Since 1934 it is required registration of machine guns and has imposed accompanying criminal penalties. In 1968, Congress amended that law to cover parts that facilitate automatic machine guns. And in 1986, Congress amended the law in order to ban transferring or possessing machine guns. And this case is about essentially what a machine gun is, what is covered by these prohibitions.


Leah Litman As we’ve talked about before, in October 2017, the deadliest mass shooting in American history happened in Las Vegas, Nevada, where 58 people were killed and 500 more were wounded, and the perpetrator carried that out with a bump stock. It bump stock is a device designed and intended to allow users to convert a semiautomatic rifle into something that shoots a lot more bullets without the person holding the gun having to manually push or pull the trigger, or otherwise fire the weapon themselves. Essentially, it works as the rifle. Rifle can be continuously fired with a single pull of the trigger, discharging hundreds of bullets per minute. Bump stocks trigger a cycle of bump, shoot bump, shoot where after the trigger is pulled, so long as the trigger person continues to hold the device with forward pressure, the device continuously fires.


Kate Shaw So here is a clip going into a little bit more detail about how it functions. So you’ll hear Deputy Solicitor General Brian Fletcher, who argued for the federal government in this case and I thought was characteristically precise and excellent. So here’s Brian.


Clip To fire a rifle fitted with a bump stock. The shooter simply places his trigger finger on the built in finger latch, and uses his other hand to press the front of the rifle forward. As long as the shooter maintains that steady forward pressure, the rifle will fire continuously until it runs out of bullets, and it will empty a 100 round magazine like the ones used in the Las Vegas shooting in about 10s. Those weapons do exactly what Congress meant to prohibit when it enacted the prohibition on machine guns. And those weapons are machine guns because they satisfy both disputed parts of the statutory definition.


Kate Shaw So that’s what a bump stock is. After the Las Vegas shooting, the Bureau of Alcohol, Tobacco and Firearms, or ATF, issued an interpretive rule in December of 2018 that said that bump stocks transformed guns into machine guns that are restricted under federal law. And that was actually during the Trump administration. Right. This is not a Biden era rule, but the regulation was nevertheless challenged, and that’s what resulted in this case. So the question here is, does the federal law restricting machine guns allow the ATF to also restrict the use of bump stocks? Should we start with high level predictions?


Leah Litman Yeah. You know, I think this case is a little bit difficult to predict. Justice Kagan, Justice Sotomayor, Justice Jackson think bump stocks can lawfully be banned. Justices Gorsuch, Thomas and Alito. And I think Kavanaugh think not. And it was harder to read the chief justice and Justice Barrett, although I’m a little gun shy after the SB eight case to conclude that Justice Barrett might be inclined to be reasonable even if she acts reasonable at an argument. I think I don’t know.


Kate Shaw Yeah. No, I think that’s I think that’s right. I think that Barrett Barrett’s performance in questions at oral arguments are not reliable predictors of her vote. And I think that I probably came out a little bit more optimistic, but maybe because I haven’t fully internalized that lesson, because I did think that she was likely with the, you know, other female justices and that the four of them were a likely vote to uphold this rule. And the only question was, really, if there was a fifth vote, could it maybe be Kavanaugh? Could it maybe be the chief? And I thought that was, you know, possible to slightly more than 5050 likely. But I you know, that this is even a close call. Going in is pretty shocking considering it is the most modest effort to I mean, there’s very little left that is banned, but machine guns are still on the list. And that’s what this is. And it is only in the most formalistic. But also, I think, the worst kind of textualism.


Leah Litman Yes, yes!


Kate Shaw That Jonathan Mitchell was demonstrating during this argument, that could possibly result in a conclusion that this rule is impermissible as a matter of, you know, the the meaning of the statute at issue. And yet so the fact that it’s even a possibility should just, like, show us how far we have strayed from reasoned statutory interpretation and judicial decision making more broadly.


Leah Litman I totally agree, and we’ll get into that kind of textualism a little bit later. But before we get into those thoughts, I again wanted to start it off with Sam Alito, who again just showed up. He showed up and showed out this week an exchange between Sam Alito and Jonathan Mitchell, which just perfectly encapsulates the ridiculousness of the place. So I’m just going to play play this exchange to let it marinate.


Clip Can you imagine a legislator thinking we should ban machine guns, but we should not ban bump stocks? Is there any reason why a legislator might reach that judgment? I think there is. Bump stocks can help people who have disabilities, who have problems with. Finger dexterity. People who have arthritis in their fingers. There could be a valid reason for preserving the legality of these devices as a matter of policy. Even while similar weapons such as the fully automatic machine guns are being banned.


Kate Shaw I mean, the amount of material for your book, Leah, that Justice Alito is actually the disability justice advocate, like, against the sort of tyrannical and overreaching ETFs seeking to ban bump stocks for individuals who might not otherwise be able to operate conventional machine guns. Like that’s actually the deep card in this case. And I’m so appreciative that Sam Alito cleared that up for all of us.


Leah Litman He heard my call for research assistant Melissa’s call for a research assistant, last episode. And he was like, I volunteer, I volunteer, you know. I use various nicknames for the man. I’m not clear whether this is, like, woke Lito, him positioning himself right as a defender of the weak right in specious ways. Or Toledo, like, he’s like, let me come up with a justification that, like, you lives with, like and try to, like, throw it in your face, even though it doesn’t make any sense at all. Because of course, he shows no care or attention to the fact that the kind of mass gun firings enabled by bump stocks can endanger people with conditions that make it harder for them to suddenly flee or take cover. Right? Instead, he just decides to, you know, get Mitchell to say Congress was protecting people with disabilities by allowing them to fire hundreds of bullets a minute with a single poll.


Kate Shaw Justice Sotomayor was not really having it. So let’s play her responding to that.


Clip Why would even a person with arthritis, why would Congress think they needed to shoot 400 to 7 or 800 rounds of ammunition under any circumstance? You can’t shoot. If you don’t let a person without arthritis do that. Why would you permit a person with arthritis to do it?


Kate Shaw So I was glad that she did not let that representation go unchallenged. Yes. So maybe a couple of big picture thoughts. And then let’s go a little bit deeper on some of the aspects of the argument. One is that as we said when we previewed this case, this is not a Second Amendment case, but the court definitely was bringing some kind of Second Amendment energy or principles to the argument. And maybe by this we mean something like normal principles of law and legal analysis and analytical standards fall by the wayside when a case involves guns. I think that is essentially what we saw at play here, because yeah, yeah. Let’s offer a couple of examples. So one, some justices, specifically Neil and Brett, seemed very concerned about the possibility that bump stock owners would find themselves in legal trouble if they didn’t know the bump stocks, which had previously been legal, were now illegal. Anytime the law changes, that’s a possibility, and it does not normally seem to bother them very much. And yet here they were deeply, deeply concerned. But it is a general, longstanding and well-established rule that ignorance of the law is typically not a defense. It doesn’t matter whether you know that possessing certain items violates federal law. All that matters is that you knew you possessed those items. And yet they seem to be asking for some kind of blood oath from Brian Fletcher that no one would be prosecuted for possessing a bump stock that had been acquired prior to the change in the ATF’s interpretation. Fletcher parried all that really well, but it was hard to swallow this energy in light of their ordinary energy and criminal cases. I thought.


Leah Litman Yeah, no, they were accusing the Biden administration of potentially moderating the content of those bump stock. So, you know, you know, even though this isn’t a Second Amendment case, you know, the case was argued by Jonathan Mitchell because, of course it was. He’s also defending Trump in the Colorado case. And Justice Kavanaugh tried to goad Mitchell into involving the Second Amendment, even though the briefs hadn’t done so. And Mitchell actually kind of resisted this in this exchange.


Clip Last question. You haven’t made a Second Amendment or constitutional avoidance argument, in your view, are bump stocks covered by the Second Amendment protected by the Second Amendment? But we didn’t argue that because courts are generally loath to decide constitutional questions when there’s an easy statutory offering, you can throw it in as constitutional avoidance. And I imagine that was a considered choice. And I’m curious what what was behind that. There’s nothing that prevents this court from invoking the constitutional avoidance cannon on the Second Amendment issue, because there is a question, at least, whether this falls within the dangerous and unusual weapons carve out in Heller. We don’t have a position on that question because we didn’t brief it. And also dangerous and unusual weapons is vague enough that it’s just not clear to us what the answer would be. Was Jonathan Mitchell in the aggressiveness of.


Kate Shaw Your exhortation to make Second Amendment arguments like that’s really saying something.


Leah Litman Yes, and saying something important, because this is an area where Justice Kavanaugh is, in my view, like kind of a wingnut, right? He is really out there on the Second Amendment. And so for all of the media and different people’s attempts to portray him as the, like, moderate, you know, justice on the court, the media and justice part of this institutionalist center. He is not anywhere near what anyone describe as the middle of anything on guns.


Kate Shaw Yeah, I think that’s totally right. The one thing I think is possible, and this is how I could imagine him supplying a fifth vote, is that you have the four ladies and then him concurring in the judgment and writing some mealy mouthed concurrence that basically said.


Leah Litman But how I am a father of daughters.


Kate Shaw And I would. Yeah, but but also so, so that and so like I stand in solidarity with with my colleagues.


Leah Litman Biggest feminist on the court.


Kate Shaw Exactly. But. And somehow. Because even when pressed, you know, the challengers didn’t suggest the Second Amendment was in the mix and should inform our interpretation of the statute. I agree that the challenge should be rejected. And yet in a future case like, yeah, you know, my mind is wide open. So it’s just it has the feel of like a mealy mouthed Kavanaugh having it both ways. Opinion that I could well imagine emerging from this case.


Leah Litman Go figure.


Kate Shaw Another maybe high level note is that the court seems to have lost some of the appetite for the consequentialist energy of Trump versus Anderson. We talked about this in the context of the immunity, argument. That was also true here. So in the Colorado case, the court was deeply concerned about what might happen in the event the court allowed states to disqualify people under the 14th amendment. And all of a sudden, the justices seemed remarkably uninterested in what it might mean on the ground if they said that bump stocks were, again, legal. I can’t figure out why they’re so concerned some of the time and not in other cases. Just hard to know.


Leah Litman Yeah. Really difficult. And though it’s not clear exactly how the court is going to rule here, you know, given in particular the chief and Barrett, I did want to say something about how this case positions the justices vis-a-vis the Republican Party, because we have heard a lot, or at least I have heard a lot about how the court or courts generally were the institution that held firm stood on principle, even while the Trump administration tried to interfere with the peaceful transition of power. You know, courts turned away, right? The efforts to overturn the elections via the courts. And this kind of led to this narrative about how the court and courts are maybe the least bad institution, right? When you have a Republican controlled Congress and White House. And this is an example where that narrative is just way too simplistic, because this court might go further into the abyss than the Trump administration would. Right? Since the Trump administration concluded bump stocks were machine guns and could be restricted. And now Supreme Court justices, including Trump nominees, right, could very well say no, right? They cannot.


Kate Shaw Yeah, that’s a great point. Okay. So if that’s right, if a majority or even a subset of the justices say that bump stocks can’t be prohibited in the way that ATF sought to do that here, how might they do that? Right. Like what could possibly be the reasoning and the dispute here is about the meaning of the words in the statute and specifically whether a bump stock automatically fires based on a single quote function of the trigger. So the law defines machine gun as an I’ll quote the statutory language here. Any weapon which shoots is designed to shoot, or can be readily restored to shoot automatically more than one shot without manual reloading by a single function of the trigger. End quote. And it also includes a quote, a part designed and intended solely and exclusively for use in converting a weapon into a machine gun. So Cargill and Jonathan Mitchell, representing Cargill, say that the bump stock automatically renews pressure on the trigger such that the trigger fire is based on the pressure generated from the bump stock, and that those firings are multiple functions rather than a single function, and thus don’t fall within the statutory language.


Leah Litman And the government’s position is that the bump stock converts the weapon such that one manual manipulation of the trigger pushing the trigger once that’s a single function, and it results in a cycle in which hundreds of bullets are fired in a minute, no additional manual manipulation of the trigger is required. So a bump stock essentially makes it so every single function of the trigger manual manipulation automatically fires hundreds of bullets.


Kate Shaw And during the argument, some of the justices, and specifically just the Democratic appointees, focused on what they called an anti circumvention principle. Basically, the idea that Congress doesn’t write laws to be ineffective or easily worked around Congress isn’t trying to make laws that give people ways to nullify what Congress did. And Justice Kagan pointed out that the statute itself has some anti circumvention provisions in it, including the prohibition on parts that could result in a weapon that functions like a machine gun.


Clip But the statute doesn’t say a lot of things that you’ve agreed are prohibited under the statute. The statute doesn’t you know, think about buttons and the statute doesn’t think about switches. And I have to think that if I gave you a different hypo that said it was voice activated, that you would have to say, yes, that’s a machine gun to. And the statute doesn’t think about that. And I guess what Justice Gorsuch is saying is that you, in arguing this case, have had to do something very sensible, because otherwise it would seem, you know, like, you know, that this statute is loaded with anti circumvention devices. The entire way the statute is written suggests the Congress was very aware, aware that there could be, small adjustments of a weapon that could get around what Congress meant to prohibit and, and, and in all kinds of ways, you are accepting of that and saying, yes, you can’t circumvented by that. You can’t circumvent it by non-conventional triggers. You can’t circumvent it by, you know, all these things that, these hypotheticals I’ve been giving you. But you can circumvent it through this one mechanism.


Leah Litman And maybe just a reference to the anti circumvention principles or provisions that she might have in mind. You know, when you were reading the provision, Kate. Right. There’s a clause in there that said or can be readily restored to shoot. Right. And then there’s the additional definition that says a part designed and intended right for use in converting a weapon into a machine gun. So those are just some of the examples and that she might have been referring to. And the idea that there are these anti circumvention provisions in the law as well as a general principle matters because as Brian Fletcher, the lawyer arguing for the federal government, said the Fifth Circuit’s ruling has already led to some pretty troubling circumvention as far as firearms that courts are allowing. So let’s play that clip here.


Clip I mean, I talked about some of them, but one of the devices that the Fifth Circuit has held is permissible or I’m sorry, a district court in the Fifth Circuit has held is permissible and the Fifth Circuit has declined to stay or something called a forced reset trigger. And with a forced reset trigger, the ATF tested it, zip tied the trigger back and the gun shot multiple bullets. What the district court said is that under my friend’s interpretation, it’s function. There are multiple functions of the trigger because the trigger is wiggling back and forth imperceptibly and releasing the hammer separately each time. And so it’s not a machine gun. And I think it’s just not reasonable to read the statute that opens it up to that sort of evasion. And we’re seeing concrete evidence of that evasion in the Fifth Circuit.


Kate Shaw And toward the end of his argument, Mitchell seemed to affirmatively concede that his interpretation of the law would mean that a bunch of other anti circumvention mechanisms that ATF has long said are prohibited wouldn’t be prohibited, like the Akins Accelerator, which has been banned since 2006. That device relies on a spring and coil mechanism, so pulling the trigger once generates the firing of multiple bullets. The bump stock does this too, but without a spring in a coil. So a shooter has to continue to apply forward pressure to make the bullets keep shooting.


Leah Litman And Justice Kagan had some illuminating exchanges with Jonathan Mitchell about where he was drawing the line. That is what things he was saying were prohibited and what things were not. She suggested he was almost gerrymandering, bump stocks, or at least didn’t have a way of distinguishing them sensibly from things that he thought were prohibited. So we’re about to play a long series of hypotheticals with follow ups that will kind of illuminate this.


Clip If a gun fires multiple shots at the push of a button or the flip of a switch, and just keeps firing. Guess clearly that’s machine gun. That’s a machine gun. That’s United States against camp, essentially. Okay. And if a, if if a gun does the same thing except now it’s the push of two buttons. Yeah. I thought you say also on page 45 of your brief, that a push operated machine gun that requires the shooter to push and hold two buttons that that would also qualify. Right, because the two buttons together are acting as the trigger. And that scenario. Okay, so you conceded the two buttons is a machine gun. So now I’m saying instead of pushing two buttons, you push one button and you hold the trigger. It’s going to depend on what how we define trigger. And the answer to that will not always be clear. The question is, can you extend the holding of United States against camp to this particular situation? And we’re going to have to say, yeah, I think you don’t quite know what the answer to that is. If you have an answer, let me know, because the difference between pushing two buttons for me and pushing one button and holding the trigger is not self-evident. To pushing a button and holding the trigger. And you need to do both. Say both. Boy, I thought I thought I was being pretty clear here. Yeah, you pushed two buttons. Okay, so now I guess I want to know what’s the difference between pushing the button and holding the trigger and pushing the barrel and holding the trigger? You’ve just described a bump stock.


Leah Litman So Mitchell’s answer was that none of these devices actually modified the trigger. But it’s not clear why he had settled on that definition of trigger or this necessary condition of modifying the trigger, like neither of those things were in the statute. It wasn’t clear why he was defining trigger a function of the trigger as one push pull that is like pressure on the trigger when, as Justice Kagan pointed out, you can modify firearms to fire in different ways and through different mechanisms, some of which Mitchell said would be covered by this law. Like if you just put two buttons on, right, that would mean like a single button, right? A single push or pull of the trigger wouldn’t be sufficient such that that modifies the trigger here, too, even though pressure on the trigger is still required to fire, manual manipulation is not, and that is a very plausible definition of a single function of the trigger. Again, given the overall context and other provisions in the statute. Justice Kagan was so good, it seemed like Mitchell got frustrated with her.


Clip I’m not conceding that you can circumvent the statute, Justice Kagan. We’re just interpreting the word trigger.


Leah Litman And then Sam Alito felt the need to intervene.


Clip And, Mr. Mitchell, this kind of this conversation is totally confusing me because I thought that your argument depended on what the trigger that the function of the trigger was, what the trigger does mechanically inside the weapon.


Kate Shaw We also had some, can we call them illuminating exchanges during this argument about statutory. So here. Whatever. Whatever this is, let’s play it. Justice Alito, with a leading question to Jonathan Mitchell.


Clip In the field of statutory interpretation. Justice Scalia’s bete noire was the church of the Holy Trinity, a case where he thought that, the literal language of the statute, had to control, even though it’s pretty hard to think that Congress actually meant that to apply in certain situations, as you see this case, is this another church of the Holy Trinity case? I would say it’s quite as egregious as church of the Holy Trinity, but the arguments the government’s making are certainly in the spirit of Holy Trinity, to borrow a phrase that was used from the Holy Trinity opinion. And I don’t think a textualist judge can accept the rationale this being offered by the US government. And they are, in their brief, expressly making purpose of arguments along the lines of what we saw in church of the Holy Trinity. Thank you.


Leah Litman Maybe just to like explain this. So Holy Trinity is a it’s a reference to a decision. And it is a bad word, a bad phrase among textualist and emblematic of anti textualist reasoning. Because in that case, the Supreme Court said, oh, the text of the law covers this, but we court aren’t going to read the law to do that because it would violate the spirit of the law, what Congress would have attended. And it’s like a bad word for textualist. You know, perhaps more relevant for today is that Holy Trinity was an instance where the Supreme Court relied on religious doctrine, right. And no religion to interpret the law.


Kate Shaw Literally said that literally this opinion says this is a Christian nation. And that was essentially the basis on which the court rendered its decision. So, yeah, go ahead.


Leah Litman No, it’s unclear. Sam Alito would say that part is so bad. But also the idea that Sam Alito is like the standard bearer and polisher of what Textualism is is just laughable. This is a guy who not infrequently mocks Textualism and the rules of grammar and canons of construction. Right? The textualist use they, they say, is important to interpreting statutes. He likened it to an Enigma machine and whatnot. So it’s just like try to try to show some consistency, sir.


Kate Shaw I know, and this is another example of some shadowboxing with Justice Scalia. I thought, yeah. And that exchange between Alito and Mitchell led to this response by Elena Kagan in which she seemed to suggest that unlike others on the court, maybe including Sam, she actually is a good textualist.


Clip Mr. Mitchell, I tell you, I view myself as a good textualist. I think that that’s the way we should think about statutes. It’s by reading them. But, you know, textualism is not inconsistent with common sense. Like at some point you have to apply a little bit of common sense to the way you read a statute and understand that what the statute comprehends is a weapon that fires a multitude of shots with a single human action, whether it’s a continuous pressure on, a conventional machine gun holding the trigger or a continuous pressure on, one of these devices on the barrel, I can’t understand how anybody could think that those two things should be treated differently.


Kate Shaw Unlike that guy.


Leah Litman Right! Exactly.


Kate Shaw And I think we’re going to spare our listeners having to suffer through Neil Gorsuch talking about function as a intransitive verb. You can’t function a trigger. But if you’re really feeling masochistic some night, maybe just listen to the argument if you haven’t. But I just can’t do it. I can’t do it. No. Yeah. But anyway, there was some real kind of pique, ridiculous Gorsuch, performative textualism about grammar and transitivity, and I don’t think it got a lot of traction with his colleagues. I, I’m hopeful about CBJ. I had some very good responses as well. But there was like a lot of really disturbing parsing of the kind of status of this word function that really had a like losing the forest for the trees feel to it. Anyway, so I don’t know, big picture recap. You think, Lisa, that you’re pessimistic? You think that the court is going to strike down the rule.


Leah Litman I think there’s a greater than 50% chance, that the court, you know, says machine guns doesn’t include bump stocks, but I don’t I don’t know that it’s entirely clear, but it was just hard to read. Two of the justices know, to my mind, Barrett and the chief.


Kate Shaw Yeah, I’m feeling more optimistic, but I certainly don’t think it’s a slam dunk by any means. Let’s recap one more case the court heard last week, and that is Cantero versus Bank of America, a case about whether the National Bank act or NBA preempts a New York state law requiring mortgage lenders to pay a minimum interest rate on funds held in mortgage escrow accounts. When the state law is applied to national banks. It sounds really dry, but honestly, there’s a tiny bit of like McCulloch versus Maryland Energy to the case. There was even a question about whether McCulloch was right. We decided so the case in the argument were more interesting than I had expected going in. Okay. So briefly, background. We’ll see if our listeners agree that this is actually interesting. But under the statute, the NBA state consumer financial law is preempted, right? Meaning the federal law controls, only if as relevant here, the state law prevents or signifies. Interferes with the exercise by the national Bank of its powers. The Second Circuit said laws are preempted based on whether they purport to control the exercise of national bank powers. Not how much a law impacts a national bank. And then elsewhere, the NBA says that section 25 B’s requirement that a preemption determination assess the impact of a particular state consumer financial law.


Leah Litman So John Taylor, Jonathan Taylor from Gupta Wessler did a great job explaining to the court why the Second Circuit’s test now seemingly departs from the one that is outlined by the NBA. He was also very clear in explaining how the test should work, why it’s administered. All the federal government was supporting him and they were arguing against. Lisa Blatt. Regular listeners of the Pad are familiar with Lisa’s unique argument style, which I will share with the rest of you here.


Clip It’s not in your brief and it’s different. And if I think it’s different from the lower court opinion, what are we supposed to do then? Stick with our brief. It’s not in your brief. Stick with our brief. Don’t, don’t. You didn’t hear anything I said. Well, your brief if you read the. That’s the first time I’ve heard that. I mean, the problem is that your brief doesn’t explain fair lending laws.


Leah Litman Listeners know I have a real soft spot for Lisa talking shit to the justices here, basically yelling at Neil Gorsuch. You didn’t hear a thing I said, which is something I also often want to say to Neil Gorsuch. And she just does it to his face. So respect.


Kate Shaw It’s not clear everyone on the court loves her style. Although I actually thought that she she seemed to be going over pretty well in this argument. That is not always the case. I thought Taylor was great. He’s had a couple of great arguments this year. Yep. So I don’t know. I think that on the merits, like, he really was persuasive. And and yet Lisa’s winning streak is, is is tough. So I don’t know if she’s an unbroken.


Leah Litman No, she she lost her today.


Kate Shaw That’s okay. She lost. Yeah. Not totally unbroken. So. So we will see. But it was a pretty entertaining argument, which I did not expect going in. Let’s end with some court culture, and we want to start with an update out of Alabama. Right. So we have talked about the decision out of the Alabama Supreme Court finding that cryogenically frozen embryos are children for purposes of the state’s wrongful death of a minor act. Following that decision, a number of clinics in Alabama announced that they were pausing IVF services out of an understandable fear of liability flowing from this decision, and in the wake of that announcement, the Alabama legislature passed a law that provides legal immunity for death or damage to an embryo to any individual or entity when providing or receiving goods or services related to IVF. So essentially a liability shield for IVF providers. So that’s a statute that, you know, may have the effect of restoring IVF access in Alabama. And if so, that’s great. But I think it very much remains to be seen whether the Alabama Supreme Court lets that law stand under the state or maybe even federal constitution, given some of the constitutionally inflected reasoning that we talked about in the Alabama state case, because a statute can’t do anything to change what the Alabama Constitution requires, if, in fact, the justices think the Constitution itself requires treating embryos as persons.


Leah Litman We noted last time that Alabama, as Beyonce said in Texas, while Texas stepped up because we have another front in the battle for reproductive freedom. And this one is out of the state of Texas. So a district court in Texas, which is how these sentences always begin. A district court in Texas invalidated the Pregnant Workers Fairness Act, along with the rest of the Consolidated Appropriations Act, concluding that the law was passed in violation of the quorum clause of the Constitution because Congress authorized proxy voting. We should note that the Constitution actually says the House, quote, may determine the rules of its proceedings and quote, but no matter. You know, the judge who invalidated, the law is Judge Hendricks, who was nominated by Donald Trump. At ring was on Twitter, had a great thread pointing out the various errors in parliamentary procedure in the opinion like Misidentifying, the abbreviation H.R. as House resolution rather than House of Representatives or Misidentifying who signed the bill on the House and whatnot. So.


Kate Shaw Yeah, I mean, this.


Leah Litman Yay law.


Kate Shaw This decision really had it all. It was like the Pregnant Workers Fairness Act was, you know, it was added to this larger appropriations bill in December of 2022, six months after Dobbs, a sort of unexpected bipartisan coalition came together and was like, well, at least if everyone is going to have to carry pregnancies to term, maybe we should at least provide people some protections against being fired or discriminated against for being pregnant. So you know that it was an actually important, good piece of legislation. And of course, Texas, like the most pro-life of states, does not want pregnant workers to be able to go to work free from discrimination. And so that’s the basis for the standing that the court found that Texas had to challenge this appropriations law. I think there was also a challenge to an immigration provision of the larger, law that this was attached to. So there’s just like the sadism, like the misogyny and also the incompetence of the opinion. Right? It can’t even get basic matters of.


Leah Litman Got it all.


Kate Shaw Parliamentary procedure. Yeah. And it’s 120 pages or something to boot. So there was that. But thankfully there was actually. Some sanity out of Texas, which is a district court opinion enjoined Texas’s extreme anti-immigration law, SB four, that attempts to impose some penalties under state criminal law for violations of federal law, even though in Arizona versus United States, the Supreme Court has said that some immigration law provisions are highly regulated schemes that preempt any state involvement whatsoever. So here the Texas law also purports to authorize state courts to order people to be removed, even though Arizona versus United States and federal law more generally make clear that federal immigration law created a system in which federal immigration officers would primarily make removal determinations. And state law specifically barred state courts from considering the fact that there might be pending or potential federal immigration removal proceedings against someone. So that case is now likely to go up to the Fifth Circuit. Obviously that’s how all happy stories begin their endings. No. No way. It’s going to end well. Because we know the Fifth Circuit is pretty sure that Texas law and not federal law is supreme when it comes to immigration and the border.


Leah Litman And the Fifth Circuit had to get on that bus early. The New York Times reported that late Saturday night, the Fifth Circuit entered an administrative stay of the district court decision enjoining the Texas law. But the Court of Appeals also apparently indicated that the stay would expire this Saturday unless the Supreme Court intervenes before that. We’re going off the New York Times reporting about this because at the time we’re finalizing this episode, the Fifth Circuit hasn’t actually released its order. But it appears that the Court of Appeals made it such that Texas’s anti-immigration law, a law that destabilizes and challenges the existing framework for immigration law, will go into effect this weekend unless the Supreme Court stops it. Scotus your move.


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Kate Shaw Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Litman, Melissa Murray, and me, Kate Shaw. Produced and edited by Melody Rowell. Thanks to Bill Pollock for guest producing this week’s episode. Audio support from Kyle Seglin and Charlotte Landes. Music by Eddie Cooper. Production support from Madeline Herringer and Ari Schwartz. If you haven’t already, be sure to subscribe a Strict Scrutiny in your favorite podcast app so you never miss an episode. And if you want to help other people find the show, please rate and reviews. It really helps.


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