Contours of Content Curation: SCOTUS Hears Online Free Speech Cases

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Hubwonk transcript, March 5, 2024

Contours of Content Curation SCOTUS Hears Online Free Speech Cases

[00:00:00] Joe Selvaggi: This is Hubwonk. I’m Joe Selvaggi. Welcome to Hubwonk, a podcast of Pioneer Institute, a think tank in Boston. Social media has revolutionized how Americans exercise their First Amendment right to free speech, offering unprecedented reach for individual expression. However, this newfound freedom has sparked a contentious debate over the rights of social media users versus the platforms that manage their communication. In states like Florida and Texas, resentment over perceived viewpoint discrimination led to the passage of laws in 2021 prohibiting social media sites from censoring certain viewpoints — under threat of fines. This tension between the unfettered right to speak and a platform’s discretion in curating content lies at the heart of the pivotal cases NetChoice v. Paxton and Moody v. NetChoice, both of which, last week, presented oral arguments to the United States Supreme Court. Are internet platforms akin to public squares, where all voices should be heard? Or are they more akin to media outlets, with the right to curate content? The implications of the Court’s decision on these cases could have far-reaching effects on future content providers, potentially limiting their ability to privilege or exclude certain types of speech.

[00:01:23] How might the Court’s decision in these cases better clarify the lines between free speech and government intervention? Today, I’m pleased to have Thomas Berry, a research fellow at the Cato Institute and the editor of the Cato Supreme Court Review, as my guest. Attorney Berry has played a pivotal role in shaping the discourse surrounding the Net Choice cases, co-authoring Cato’s amicus brief, and providing extensive analysis on the legal questions at hand, drawing from his expertise in First Amendment jurisprudence. Mr. Berry will offer insights into how the Supreme Court may approach these cases, examining the implications for speech rights, and future moderation policies. Please join me for a thought-provoking discussion on the intersection of law and digital expression with Tommy Berry.

Okay, we’re back. This is Hubwonk. I’m Joe Selvaggi, and I’m pleased to be joined by a Hubwonk listener favorite, Research Fellow and Editor of Cato’s Supreme Court Review, Tommy Berry. Welcome back to Hubwonk, Tommy.

[00:02:23] Thomas Berry: Thanks for having me back.

[00:02:24] Joe Selvaggi: Okay, it’s good to have you back, because earlier this week, the Supreme Court heard oral arguments on questions regarding two state laws, one in Texas, one in Florida. These were laws prohibiting services — internet services — from removing, demonetizing, or blocking a user or a piece of content based on the viewpoint expressed. At a high level, the Court wants to know, wants to decide, whether such laws are constitutional. Just before we get into the details of the laws and the oral arguments and what the court had to say, give us some background. Why did we have laws in Texas and Florida that really require or want to require, internet platforms to no longer take down any speech?

[00:03:07] Thomas Berry: Sure, so you can trace it back, probably the main impetus were several events around 2021 and early 2022, and during the 2020 presidential campaign, there were some high-profile instances where some conservatives thought social media platforms were being inconsistent in the rules that they apply. A big one was when Twitter blocked access to a New York Post article about Hunter Biden’s laptop. Another, obviously attention-getting move was when several social media sites barred President, then-President Trump, from using their services right after the January 6th, on the notion that he was a potential danger to their readers.

[00:03:48] And I think a lot of conservative states just felt that conservatives weren’t getting an equal shot at spreading their messages on these sites. And given how influential these sites are, how many people get their political opinions from them and follow debates through links from Facebook and Twitter especially, the concern was — or at least the stated concern — was that big tech companies, if they did have a bias, could essentially put their thumb on the scale of the overall free speech marketplace. And so, they framed these laws as an attempt to even that playing field and treat these social media platforms as essentially sort of neutral platforms akin to a telephone service.

[00:04:25] Joe Selvaggi: In broad strokes, these were laws written by legislators in these respective states that said, ‘Look, social media companies, you can’t do that. Viewpoint, you can’t discriminate based on viewpoint. You must put everything up.’ But of course, these services must curate at some level. You’ve got to take off terrible things. How did these laws get written? Are they fairly narrow or broad strokes, you got to put up everything?

[00:04:46] Thomas Berry: There, there are some differences between the two states. Texas focuses on viewpoint neutrality, so as the two main distinctions in First Amendment law and in speech regulation in general are viewpoint based and content based. So, a bar on viewpoint distinctions means you can’t have pro-Biden speech, but not anti-Biden speech or vice versa. But it does allow you to discriminate on content. So, in theory, a platform could just say no politics whatsoever. tThis still leads to some, in my view, pretty shocking outcomes. Like in — it essentially is conceded that you could not have a ban on anti=Al Qaeda speech unless you also banned, pro Al-Qaeda speech or vice versa. You could not have bans on bulimia promotion, unless you had bans on bulimia protection, and so forth. Florida’s is a little weirder. They have several restrictions based on speaker. In fact, they say that you can’t de-platform any political candidate, no matter what they say, and that just applies to anyone who registers to run in an election in Florida, which is a pretty low bar. It also has some pretty blatant carve-outs for things like businesses that happen to own a theme park, helping out the local economy there in Orlando. But a lot — the general lines are the same — in that a ban on content viewpoint-based distinctions and also, a ban on changing your moderation rules too quickly, a 30-day set time, that you can’t change more frequently than that.

[00:06:14] Joe Selvaggi: So in order to get to the Supreme Court, we know we’ve had these kinds of conversations before, you don’t just jump to the Supreme Court, you got to make your way through the circuit courts and appeals courts. How have the justices, the judges up to this point, treated these cases? Are there any unanimity? But I’m assuming there must be disagreement for it to get up this high.

[00:06:32] Thomas Berry: There has been disagreement. So, we have a split decision. The 11th Circuit struck down most of the Florida law, the key part on, neutrality and content moderation, in an opinion by Judge Newsom, who is a Trump appointee, whereas the Fifth Circuit upheld the Texas law in an opinion by Judge Andrew Oldham, also a Trump appointee. So, you might say that you have an intra-FedSoc aligned — Federalist Society aligned — judges’ disagreement here, a split here. Judge Newsom’s opinion analogized social media sites akin to publishers like newspapers. We have precedents from before the internet age that said you can’t force a newspaper to print an op-ed they don’t want to, whereas Judge Oldham’s opinion for the Fifth Circuit, it rejected that analogy, it said, no, these are more like the telegram companies from the 1800s, where states would impose regulations saying you can’t discriminate in whose message you’re willing to transmit and whose message you’re not. And that sort of disagreement about analogies was one of the main reasons that, the two cases came out differently.

[00:07:33] Joe Selvaggi: I want to dig into those analogies more because there are a lot of analogies, people reaching for some, something to compare this case to in precedent, right? We haven’t always had an internet carrier, so we’ve got, a couple hundred years of precedent, but we don’t have a couple hundred years of internet law. Let me take a step back and just take an analysis of the First Amendment question. I think all of us, the lay people in the audience think, okay, this is a right to speech. I read very carefully, your amicus brief in this particular case, and you talked about something that I really hadn’t always thought about. It comes up in other contexts, but it’s also the right from being compelled to speak things you don’t want to support, meaning no one can force you to say something you don’t agree with. Why is that sort of mirror image — you can say what you want, but you can’t be compelled to say what you don’t want — why is that so important? And why might that, we’ll get into why that might be relevant in this case, but why is the right from compelled speech so important.

[00:08:29] Thomas Berry: Yeah, I think it’s important because they’re two sides of the same coin, which is the right to affect the overall speech marketplace in the way you want to, and the right just to be truthful to yourself and be honest about what you believe. So, the first time the Supreme Court said there’s a freedom from compelled speech was a case called West Virginia Board of Education versus Barnett. It said you can’t force public school students to recite the Pledge of Allegiance. And they said, look, it’s inherent in the notion of freedom of speech, that you can’t force people to say out loud speech that they don’t want to. It can’t possibly be the case that the First Amendment only affects bans on speech, but lets the government do whatever it wants to force people to speak. Otherwise, it could force people to talk 24/7 and say nothing but what the government wants them to say. So, even though it’s not explicitly in the First Amendment, it just says the freedom of speech, that concept has to be understood as both a freedom to say what you want and not say what you don’t want. Where it gets trickier is freedom to amplify other people’s speech. But as I say in our brief, there’s clearly a freedom to — the Supreme Court has said there’s a freedom to mail other people’s letters anonymously to boost, essentially, a speech you support. And so, it makes sense that there would be a mirror-image right not to amplify speech you don’t support.

[00:09:53] Joe Selvaggi: This reminds me of the cases of 303 Creative and the Masterpiece Cake shop where he was being asked, not merely to bake a cake, but bake a cake with a message that he didn’t support. This is what we’re talking about, right? What other precedents, legal precedents? You mentioned, I don’t have it right in front of me, a case where a mall wanted the right to not have someone distribute flyers at their mall, which you found to be an erroneous decision. Share with our listeners, why is this murky realm of forced compelled speech in precedents?

[00:10:28] Thomas Berry: Sure. And I agree, the Supreme Court has not always been logically consistent, in my view, so some cases that have come out correctly, in my opinion, one is called Wooley v. Maynard, about license plates in New Hampshire, which have the motto, “Live Free or Die,” the state motto. A Jehovah’s Witness sued and said, I don’t want that motto on my car. I don’t agree with it. I think life is more valuable than freedom or any political situation. And he won. The Supreme Court said you can’t force someone to essentially be a mobile billboard for a message that he opposes. And they didn’t say that the harm only comes from people thinking he’s endorsing it. No one really thinks you endorse what’s on your license plate. It’s just a harm to be forced to spread it. But then we have the Shopping Center versus Robbins case you alluded to, where California, made a new rule, California Supreme Court made a new rule that privately owned open air shopping malls had to allow political demonstrations and political picketers in their common areas, in the central outdoor plazas, as if they were a public park, as if they were government space.

[00:11:31] And the Supreme Court said that’s okay, that doesn’t violate the First Amendment right of the private shopping mall, because the mall can just put up disclaimers saying we don’t endorse anything in our plaza, we were forced to host them. And I think the problem with that opinion is that it acted as if the false appearance of endorsement is the only harm from being forced to platform or amplify speech when in fact there are others.

[00:11:54] But for the most part, the Supreme Court has, in my view, been good about protecting people from being forced to boost other people’s speech. A long line of cases is about funding, funding of union speech, especially where the Supreme Court has said, ‘Look, when you are forced to pitch in dues to a union you don’t want to be a part of, it violates your First Amendment rights if they then use your money to run political ads you disagree with.’ And again, that’s not forced speech. It’s really forced amplification of other people’s speech.

[00:12:25] Joe Selvaggi: So, conceptually, I think we’ve — I hope I’ve helped frame for our listeners this idea that internet users want their voices to be heard. That’s First Amendment. But also, those carriers don’t want necessarily to be party to promoting messages that they don’t think are useful. In other words, there’s a First Amendment tension between the positive right to speech and then the negative right to not be compelled to support and promote speech you don’t agree with. Is that fair?

[00:12:52] Thomas Berry: Yes, definitely that’s fair. I think, what the social media sites would say is, there is certainly a free speech interest in the private parties on the, to have their speech spread. They would dispute whether there’s a First Amendment right to have your private speech spread if it’s via other private parties. I have a First Amendment right to write whatever op-ed I want. I don’t have a First Amendment right for the New York Times to accept it and print it, because that’s their decision. So, some people would say, and I agree with them, you have the right to speak, but you don’t have the right to any particular platform.

[00:13:25] Joe Selvaggi: That brings up a good segue to my next question, which is, in this, I suffered through at least some of the oral arguments. I’ve read pieces from the transcripts. They seem very confusing because, as we mentioned earlier, people are trying to look for analogies. There’s a concept in there that I thought was a sort of a strong one that I read up on, and this concept of common carrier, this notion, dates well back in law, whereas, if I’m a common carrier, I can’t decide whose freight I’m going to carry or whose products I’m going to carry. I have to, in a sense, let everybody on the train, lest I abuse the public obligation to not differentiate based on viewpoint. This is common carrier law. I think there was an appeal made in this case that said, these platforms are like common carriers. Share with our listeners, why is that either a good analogy or a poor one?

[00:14:12] Thomas Berry: That is indeed the main argument by both Florida and Texas. They want to argue that they are common carriers. They in particular want to analogize them to things like the Pony Express, letter carriers, UPS, and FedEx delivering a magazine, and telegrams from the 1800s. I should stress the Supreme Court has never explicitly endorsed the notion that you can, or someone like that to be a common carrier consistent with the First Amendment. But it’s being taken as a given that’s probably correct, or at least, as a libertarian maximalist, I might dispute, I might go so far as to say I think even UPS and FedEx shouldn’t be forced to carry magazines they don’t want to. But the social media sites can still win, even if I concede that. And so the analogy that Florida and Texas want to push is that Facebook and Twitter are similar. They’re just neutral conduits. People put out their tweet or their Facebook post, and they just want it to spread it to anyone and everyone. And it would be easy enough for these sites to just put them all in a feed in chronological order and let everyone who uses the service go first in, first out. So, they, the analogy that they want to say is that they’re common carriers, both because it’s possible to simply deliver their message without affecting it in any way, like carrying a letter without opening it. And they want to say that they’re affected with a public interest or sort of core to discourse that, that back in the day, if you had a monopoly, if you had one telegram company, or if you had the, the telephone companies, which back in the day were much more monopolized, you had Ma Bell everyone relying on that one company to make their phone calls, that there was a government interest in assuring everyone had access to that company’s speech services.

[00:15:52] Joe Selvaggi: So, you couldn’t, the phone company couldn’t, deny phone access to conservatives, right? Essentially, that would be an absurd application where somebody would not respect — the phone company wouldn’t be respecting their obligation as a common carrier. Let’s take the other analogy. You mentioned it earlier, a newspaper. I find that a little more similar in that it’s essentially a format that’s curated. As you say, you can write an op-ed; that doesn’t mean the New York Times has to carry it. Why is this a good analogy and, or where does this particular analogy fall short by, by critics of it?

[00:16:22] Thomas Berry: Sure. So, the analogy here is that the difference between, say, a letter carrier and Facebook and Twitter is that it’s not just delivering one message from one person to another, and they’re not just showing every tweet that anyone puts out there in chronological order. Every single person’s feed is a little bit different, and Facebook versus like competitors such as Myspace is different. Twitter, now X, is different from Blue Sky is different from Threads, whatever. Because each one has different editorial policies. They might decide, do we want adult content or not? Do we want hate speech or not? Do we want to focus on one particular subject area or not? And each of those determines  — are people likely to read their site or not?

[00:17:03] Just as you know that the editorials you’ll read in New York Times might differ from National Review, might differ from Mother Jones, in the same way people know they get different types of speech on Reddit as compared to Twitter, as compared to 4Chan and 8Chan, which are the most anything goes, including incredibly gruesome videos or hardcore videos. So, there’s clearly some choices, some conscious choices being made here. The analogy I like to say is, when Elon Musk purchased Twitter and changed it to X, a lot of people said, you know, it really, it’s not as good as it used to be. No one ever really says that about the phone calls you receive over Verizon as opposed to T-Mobile, right? You know, ‘I don’t really like the politics or the skew of these phone calls over this service.’ Or, you know, ‘I like magazines from UPS, but not so much from FedEx,’ because you don’t have that element of curation and of the whole thing being something you browse, essentially. And if that analogy is correct, it matters for the law because the Supreme Court had a case called Miami Herald versus Tornillo that said Florida, again, you can’t pass a law forcing newspapers to print op-eds from political candidates if they also print op-eds criticizing those political candidates.

[00:18:14] Joe Selvaggi: Indeed. And one more concept I want to introduce for our listeners, again, something you may be familiar with, is Section 230 rule, which essentially shields internet companies from liability for the content that they put up from their users. To use my slander, somebody, you can. You’re still, if you’re the content producer, you’re liable, but Facebook isn’t. Does that either absolve or does that make the internet carriers, in this case, their case weaker because they can’t claim tha tbeing forced to put everything up will somehow sully their reputation, given that they don’t really have a legal vulnerability here. They can’t be armed or sued for what to put up. So therefore forcing them to put up everything isn’t really a legitimate concern.

[00:18:58] Thomas Berry: That’s an argument that’s been made. It was, it’s been pushed forward strongly by Florida and Texas. And some of the justices seem sympathetic to that argument. I don’t think that’s a valid argument. I think liability for speech and the first or editorial choices and the First Amendment freedom to make those editorial choices are just two separate things. So, I raised the thought experiment to Congress could pass a section 230 for newspapers tomorrow if it wanted to. That’s a policy choice. If they did that and suddenly newspapers at absolutely no risk of liability for anything in their op-ed section, would Miami Herald versus Tornillo now come out the other way? Would they lose the First Amendment editorial rights that the Supreme Court has established they currently have? I don’t think that can possibly be true, because the reasoning of that case was not, they risk liability, therefore they ought to have freedom. It was the First Amendment, which includes the freedom of the press, remember, not just freedom of speech, and I think that’s an important complement to it — it includes editorial freedom, the choice of, that you’re putting out a curated website page, anthology, whatever. And you have the freedom to decide what’s in that and what’s not. So, I think, some people can say they get to have their cake and eat it too with Section 230. If you think that’s unfair, go to Congress and tell them to repeal Section 230. That’s an argument to make to Congress, but that can’t affect the legal constitutional law question of what First Amendment rights do they have. Otherwise, you’re essentially saying that Congress can force a trade that they don’t want. Congress can give you a liability, but suddenly that, against your will, trades out the First Amendment protections you used to have.

[00:20:40] Joe Selvaggi: All right, fair enough. That’s a good answer. It clarified — I’m learning in real time here, in case our listeners are wondering. Now, I’ve learned, and I don’t want to go too deep on this feature, but the First Amendment violations can be challenged in two different ways, facially and as applied. In my layperson terms, I think it seemed that NetChoice went in the wrong direction, really making a very broad argument that said, laws of this nature should be considered unconstitutional. Whereas it seemed like the questions that the judges or the justices were asking seemed to say, ‘Look, I don’t like these broad sweeping, assertions. I want you to be particular, what harm? what rules?’ What is the tension between, let’s say, challenging this on a facial, perspective or as applied or, in this particular instance and how did it manifest in the arguments?

[00:21:23] Thomas Berry: Typically, you bring a facial challenge if you’re confident that the way it affects every single company is essentially raising the same question. And that was the assumption NetChoice made in the way this was litigated below. That, yes, there’s lots of different sites. Twitter is a little bit different from Facebook, is a little bit different from Reddit and whatever. But basically, it’s the same question, which is you have some sort of public feed. It’s, you’re losing the freedom to decide what’s on that feed and what’s not. Is that a First Amendment violation or is it not? And NetChoice’s argument was essentially, we can facially challenge it, which in layman’s terms just means bring a challenge where if we win, the law is struck down across the board, or at least this portion of the law about taking away the freedom to moderate content is struck down across the board. It can’t apply to anyone. Whereas what the justices raised was, ‘Hold on, maybe it isn’t the same legal question for every single company. What if this law, especially in Florida, also affects Gmail’s ability to choose how its spam filter works? Or what if it affects not just Twitter feeds, but Twitter direct messages and tells them that you can’t discriminate in which direct messages you send and which you don’t.’ Maybe those are a closer analogy to the telegrams, the common carriers we were discussing earlier. So maybe it would be okay under the First Amendment to impose a viewpoint-neutral rule for direct messages, but not for your Twitter newsfeed. If that’s the case, many justices suggested, you should have brought an as-applied challenge.

[00:22:57] And in layman’s terms, again, that just means a challenge where you’re not asking the court to strike down the law in every application as applied to everyone. You’re saying, strike it down to the extent that it forces us to change what’s on our newsfeed, but leave it up to the extent it changes what we do with direct messages, or something like that. It would be up to whoever the challenger is to be really explicit in their complaint. What are we asking you to block? What part of the law are we asking you to block, and what part aren’t we? The reason this was unexpected is that Florida had, and Texas below, had kind of assumed facial challenge made sense. They hadn’t really raised this issue of what about direct messages. So, the justices raised it on their own and took both sides by surprise.

[00:23:42] Joe Selvaggi: Indeed. So, let’s talk about the actual mechanics. For lack of a better analogy, I’ll use terms like left and right when we talk about nine justices. Again, if there’s a common theme with all these oral arguments and decisions, it seems like there’s not a bright line between left and right, just general terms. It seemed like this debate, particularly in the oral arguments, seemed more along the lines of all the right-leaning justices seem to disagree with each other. The left seemed more or less more comfortable with the idea of censorship, if you will. I’m throwing that term out there. You can disagree. How did you see the justices, all nine justices? Was there any clear right and left divide, or was it all over the board as, again, I, as a layperson, perceived it to be?

[00:24:20] Thomas Berry: I think you’re right. I don’t think this case has a clear left-right divide. And I have to say, historically, it’s really ironic to me that conservative states are now defending these laws, citing Pruneyard as if it’s a great case, because I’m old enough to remember the net neutrality First Amendment debates that was going on when I was a 3L in law school. That was the first time I read Pruneyard. And it was being cited by the Obama administration to defend their net neutrality regulations, which imposed similar content-neutral rules on internet service providers, and then Judge Brett Kavanaugh, when he was still on the D.C. Circuit, wrote a dissenting opinion saying that net neutrality should have been struck down, and that Pruneyard didn’t apply, that they had a First Amendment right. And I thought that his opinion back then, four or five years ago, made a ton of sense. We’ve pretty much swapped the conventional wisdom of, it used to be progressives liked Pruneyard, and now the conventional wisdom is conservatives liked Pruneyard. And I think that’s part of the reason why the justices didn’t have a, it didn’t break down on originalist versus living constitutionalist type grounds. You had a split where justices Alito and Thomas and maybe even Gorsuch seemed sympathetic to the goals behind this law, whereas Justice Kavanaugh, for sure, and Chief Justice Roberts seemed a lot more skeptical and were really much more inclined towards the newspaper analogy. And then the sixth Republican appointee, Justice Barrett, I honestly wasn’t sure. She had tough questions for both sides.

[00:25:53] Joe Selvaggi: Indeed, and I think, again, so that we blur the line — one of the reasons I love relying on Cato and someone like you, Tommy, is there’s no political affiliation. I think libertarians are despised by both sides, if you will.

[00:26:04] Thomas Berry: It’s just what we want.

[00:26:04] Joe Selvaggi: That’s right. So, for those on the left and the right, I believe that libertarians — they may be wrong, but wrong for the right reasons, perhaps. But we live in a time where it seems like there’s strong calls from activists on both sides to both promote their own speech but suppress the other side. I think in this case, this is clearly coming from the right saying, look, we want to be heard on these platforms. On the left, you’ve got calls for censorship in more in the forms of trying to suppress what they call misinformation, which we’ve come to learn is really suppression of any viewpoint that they don’t agree with is misinformation. What will all this legislation or, judgment say about going forward? Do you see, let’s say, voice suppression or censorship, for lack of a better word, is on the march, or do we think the First Amendment is strong enough to withstand these kinds of challenges?

[00:26:51] Thomas Berry: Well, a lot will ride on how the Supreme Court decides this case. I often say conservatives should be careful what they wish for if they win this case, because liberal states are watching, too, and they’re thinking about what sort of regulations can they impose to make the internet more like what they want to see or what they think is fair in their own view of things? And a precedent set here would apply even beyond the internet. So, I raised the example of take a brick and mortar bookstore, maybe a single family-owned conservative or Christian bookstore that doesn’t want to carry, proLGBT books. I think If Florida and Texas win this case, a liberal, a progressive state could probably force a bookstore to carry every book without any viewpoint discrimination because they would make the same argument — it’s Pruneyard. It’s your common carrier or what have you. The only distinction maybe you can make is bigness, but that’s usually not a valid First Amendment distinction between big companies and little companies. So, it would be an, it would open the door and you would potentially have a situation where the internet looks different depending on what state you’re in, that Facebook and Twitter look different to Texans than it does to Californians, which I think is very problematic from the point of view of having a consistent sort of baseline First Amendment standard across the whole country.

[00:28:12] Joe Selvaggi: Indeed. Be careful what you wish for. Yeah, this is difficult. So then, okay, we’re running out of time. Let’s talk about, we just heard the oral arguments. I suppose the decision will come down sometime in the late spring or summer. What are the range of the outcomes? I think we’re going to weight this as saying it’s unlikely that the Supreme Court will just say, yeah, great, these laws, let them ride, we see nothing wrong with either law in Texas or Florida. That’s probably unlikely, but paint for us the whole range of possible outcomes of these decisions.

[00:28:38] Thomas Berry: I agree with you. That’s the most unlikely. I only heard, I think most likely seven, it’ll be 7-2 on the actual merits of can you force Facebook’s feed to be viewpoint neutral. I really, Thomas and Alito, I think can, would vote to uphold maybe Gorsuch 6-3, but there’s a lot of uncertainty, especially about the Florida law and this issue of direct messages and email, and the uncertainty about does it apply to those. So, there’s one mechanism federal courts have called certification to the State Supreme Court, which is where they realize, look, we can’t really decide this until we have clarity about what does the state law mean. So, you can send a question to the state Supreme Court, the Florida Supreme Court, and tell them, ‘First you tell us does this apply to direct messages and Gmail, and then we’ll go back and maybe have our arguments again.’

[00:29:27] The Solicitor General of the United States suggested that as an option. If that happened, that would be surprising and it would mean probably we don’t get a decision for another term, another year. Another option is that they write a narrow opinion upholding the current injunction, the current block of the laws, but saying it’s going to go back down, you’re going to litigate it, and if it comes out that this applies to a lot of things like direct messages, then maybe you should get rid of the injunction because it should have been brought as an as implied, a narrow as-implied challenge. So we could get, what NetChoice probably doesn’t want, is a short-term win with a lot of pitfalls for maybe longer-term either loss or narrower wins than they were hoping for. So, often we think of the Supreme Court as the last step, but there’s a lot of possibilities here where this litigation continues on for years after this.

[00:30:19] Joe Selvaggi: And getting back finally to you, in your amicus brief, which I thought was very well written, mentioning Pruneyard, that somehow it would be overturned somehow, by virtue of this decision. Forgive me for this dumb question, but would it be expressly part of the decision to say, by the way, Pruneyard was a really bad idea and we’re hereby, overturning it? Or how, what might the influence of that, what you believe to be an erroneous prior decision, what might the effect of this decision be on that decision?

[00:30:44] Thomas Berry: That would be my libertarian dream. I think, realistically, that’s unlikely in this decision. But, sometimes the Supreme Court sends signals about the direction it’s going. I’m thinking you might probably have followed, the line of cases that ended with the Janus case that overturned an old case called Abood. There is a decision a couple of years before that by Justice Alito where he basically said Abood was so bizarre and so out of step for XYZ reasons, we’re not overturning it, but we’re not extending it any further. But that sent a signal — once you got, if someone brings up a case that gives us the chance to overturn it, we’re really primed to do that. My hope, my best-case scenario for my own view of Pruneyard would be a decision similarly along those lines, saying Texas and California, Texas and Florida want us to extend Pruneyard. Not only are we going to do that, we’re going to cabinet to basically only the facts of that case itself. And in fact, we’re going to describe all the ways it’s inconsistent with many decisions since. If you have an opinion like that, that maybe primes the pump for challenges to Pruneyard to bubble up over the next three, four or five years.

[00:31:48] Joe Selvaggi: Indeed. So, I think our listeners got a lot of information here. I think they probably all, regardless of their political point of view, believe they should be allowed to speak and should never be compelled to say something they don’t agree with, and therein is the rub, of this particular case. So, I think we learned a lot from our conversation. Thank you for joining me today, Tommy. You’re always a great fund of information. And when will we hear whether this, how this case turns out? When will likely the decision be handed down?

[00:32:12] Thomas Berry: All we know is by the end, last day of June, that’s the Supreme Court’s, self-imposed deadline, and I think given how complex this case is, it very well could be one of those very last week of the term decisions.

[00:32:24] Joe Selvaggi: And so our listeners can know where to go, where can our listeners find your work and the great, good work of those folks at Cato?

[00:32:30] Thomas Berry: Sure, you can head to Cato’s website. you can just Google Thomas Berry at Cato, or my particular page is slash people slash Thomas hyphen Berry. You can see all of, all of our writings there, and in particular if you’re interested in our amicus brief, you can click on public filings under that, and you’ll see all of the recent ones we’ve done, both in this case — I like to work in particular on freedom of speech and separation of powers, which we’ve talked about both of those topics many times.

[00:32:57] Joe Selvaggi: And I find your writing very clear for the benefit of our listeners. Don’t be afraid. Go ahead. Dive in and read it. It’ll make you feel better, at least a little more informed. Thank you for joining me. I hope good luck and I’ll continue to read your work.

[00:33:09] Thomas Berry: Thank you so much. Thanks for having me.

[00:33:13] Joe Selvaggi: This has been another episode of Hubwonk. If you enjoyed today’s show, there are several ways to support Hubwonk. It would be easier for you and better for us if you subscribe to Hubwonk on your iTunes Podcatcher. It would make it easier for others to find Hubwonk if you offer a five-star rating or a favorable review. We’re always grateful if you share Hubwonk with friends. If you have ideas or comments or suggestions for me about future episode topics, you’re welcome to email me at hubwonk at Please join me next week for a new episode of Hubwonk.

Joe Selvaggi talks with U.S. Constitution scholar, Cato Institute’s Thomas Berry, about oral arguments at the Supreme Court in the NetChoice cases, exploring the First Amendment questions that affect both social media users and the platforms that curate their content.


Thomas A. Berry is a research fellow in the Cato Institute’s Robert A. Levy Center for Constitutional Studies and editor-in-chief of the Cato Supreme Court Review. Before joining Cato, he was an attorney at Pacific Legal Foundation and clerked for Judge E. Grady Jolly of the U.S. Court of Appeals for the Fifth Circuit. His areas of interests include the separation of powers, executive branch appointments, and First Amendment freedom of speech. Berry’s academic work has appeared in NYU Journal of Law and Liberty, Washington and Lee Law Review Online, Federalist Society Review, and other publications. His popular writing has appeared in many outlets including The Wall Street Journal, USA Today,, National Law Journal, National Review Online,, and The Hill. Berry holds a JD from Stanford Law School, where he was a senior editor on the Stanford Law and Policy Review and a Bradley Student Fellow in the Stanford Constitutional Law Center. He holds BA in liberal arts from St. John’s College, Santa Fe.