This week on The Learning Curve, guest co-hosts University of Arkansas Prof. Albert Cheng and Alisha Searcy interview Dr. Adrian Mims, founder of The Calculus Project. He delves into his mission to enhance math education for minority and low-income students, drawing inspiration from Bob Moses’s Algebra Project and Jaime Escalante’s teaching legacy. Dr. Mims navigates through the contentious “math wars” and underscores the pivotal role of Algebra I as a gateway to higher math. He also evaluates the negative impact of Common Core math standards, and proposes strategies to combat pandemic-induced learning setbacks and bridge the gap in math proficiency between American students and their international counterparts.
Stories of the Week: Albert spoke on an article from Politico about the Biden administration’s new plan for the Head Start program; Alisha discussed an article from National Review on school choice in Texas.
Guest:
Dr. Adrian Mims, Sr. is the founder & CEO of The Calculus Project. Its goal is to increase the number of black, Hispanic, and low-income students enrolled in Calculus Honors and AP Calculus for STEM careers. The Calculus Project is impacting over 7,000 students in over 100 middle and high schools in Massachusetts and Florida; and its won awards from the College Board, Amtrak, the Boston Celtics, and the Gates Foundation. Mims earned a B.S. in Mathematics from the University of South Carolina, an M.A. in Teaching Mathematics from Simmons College, a second masters in Educational Leadership from Simmons College, and a Doctorate in Educational Leadership from Boston College.
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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 cato.org 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 pioneerinstitute.org. 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.
Guest:
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, CNN.com, National Law Journal, National Review Online, Reason.com, 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.
BOSTON – From 2017 to 2021, Boston Children’s Hospital had the highest commercial prices relative to any other Massachusetts hospital, according to a new interactive website, MA Hospital Relative Price Tracker, developed by Pioneer Institute.
Of the 15 hospitals with the highest commercial revenue, Children’s ranked first in relative commercial prices during those years. For 2015 and 2016, Massachusetts General Hospital (MGH) ranked first in commercial prices relative to other institutions.
“The Commonwealth has for many years had among the nation’s highest healthcare costs and prices,” said Pioneer Senior Fellow in Healthcare Barbara Anthony. “The data show that a few major Massachusetts hospitals have relative commercial prices that range from about 25 to 100 percent of average commercial prices.”
“Commercial revenue” is the negotiated amount paid to hospitals by health insurance companies and large employers. It does not include government payers. “Relative price” compares the average prices charged by a hospital to the average of prices charged by all hospitals.
Relative price data are available from 2013 until 2021. The hospitals with the highest relative prices for commercial healthcare were Children’s, Dana-Farber, Brigham and Women’s, and MGH. The lowest were in the Southcoast Hospitals Group: Charlton Memorial in Fall River, St. Luke’s in New Bedford, and Wareham’s Tobey Hospital.
The MA Hospital Relative Price Tracker displays relative price and facilitates relative price comparisons among hospitals.
Relative price data is collected and reported by the Commonwealth’s Center for Health Information and Analysis (CHIA) and is an aggregate measure used to evaluate price variations among different hospitals. It is recalculated annually based on data collected from commercial payers and includes information on private commercial insurance and commercially managed public insurance products such as Medicare Advantage and Medicaid Managed Organizations/Accountable Care Partnership Plans.
Relative price values take into account differences in patient condition, types of services delivered, and the different insurance product types payers offer to their members.
The average price among all hospitals will have a relative price of 1.0. A relative price of 1.5 means that a hospital charges 50 percent higher than the average of all Massachusetts hospitals. Similarly, a relative price of 0.84 means that a hospital’s prices are 16 percent below average.
“Efforts have been made to tame the rate of healthcare cost growth in Massachusetts, such as creating the Health Policy Commission, which sets a soft ceiling for spending,” said Pioneer Executive Director Jim Stergios. “But we continue to see large disparities in relative prices levels between some major institutions and the rest of the market.”
A hospital’s relative commercial price ranking has generally remained stable over time. In addition to an annual relative price ranking of all Massachusetts hospitals from 2013 to 2021, the MA Hospital Relative Price Tracker includes a subsection on all hospital systems in Massachusetts, the individual hospitals within each system, and the relative price levels of such hospitals. The tracker application includes both a graphical and chart format.
Relative price is not the same as the actual price charged by any particular hospital. The relative price metric cannot be used in connection with the actual price of any one particular service or bundle of services at any hospital.
“She’s a good girl. She helps me a lot. She has big, big dreams. I don’t have the money, but she has big dreams. I hope she’s going to get everything, but she works so hard. She works so hard in school.”
“Our family is needing to make some really big sacrifices because we believe this is important, and so, we’re basically going to do whatever it takes… Sometimes we look at each other and go ‘I don’t know if I can do it again another month…’”
“A lot of the families have to sacrifice and work multiple jobs… And just scraping together enough money to just make tuition, just the basics.”
“It is discriminatory, that parents who want to choose an alternative to public school for their children, would not in any way receive any compensation for that, whether it be tax credit, whether it be a voucher…”
In the 1840s, nativist movement leaders formed official political parties and local chapters of the national Native American Party (later the American Party), although they continued to be commonly known as the Know-Nothing Party. Politicians sought to insert provisions into state constitutions against Catholics who refused to renounce the pope. The Know-Nothing movement brought bigotry and hatred to a new level of violence and organization.
The party’s legacy endured in the post-Civil War era, with laws and constitutional amendments it supported, still today severely limiting parents’ educational choices. A federal constitutional amendment was proposed by Speaker of the House James Blaine prohibiting money raised by taxation in any State to be under the control of any religious sect; nor shall any money so raised or lands so devoted be divided between religious sects or denominations. These were then named the Blaine Amendments of 1875.
in recent decades, often in response to challenges to school choice programs, the U.S. Supreme Court has demonstrated great interest in examining the issues of educational alternatives and attempts limit parental options. Massachusetts plays a key role in this debate. The Bay State was a key center of the Know-Nothing movement and has the oldest version of Anti-Aid Amendments in the nation, as well as a second such amendment approved in 1917. Two-fifths of Massachusetts residents are Catholic, and its Catholic schools outperform the state’s public schools, which are the best in the nation.
This week on The Learning Curve, guest co-hosts University of Arkansas Prof. Albert Cheng and Alisha Searcy interview Dr. Adrian Mims, founder of The Calculus Project. He delves into his mission to enhance math education for minority and low-income students, drawing inspiration from Bob Moses’s Algebra Project and Jaime Escalante’s teaching legacy. Dr. Mims navigates through the contentious “math wars” and underscores the pivotal role of Algebra I as a gateway to higher math. He also evaluates the negative impact of Common Core math standards, and proposes strategies to combat pandemic-induced learning setbacks and bridge the gap in math proficiency between American students and their international counterparts.
Stories of the Week: Albert spoke on an article from Politico about the Biden administration’s new plan for the Head Start program; Alisha discussed an article from National Review on school choice in Texas.
Guest:
Dr. Adrian Mims, Sr. is the founder & CEO of The Calculus Project. Its goal is to increase the number of black, Hispanic, and low-income students enrolled in Calculus Honors and AP Calculus for STEM careers. The Calculus Project is impacting over 7,000 students in over 100 middle and high schools in Massachusetts and Florida; and its won awards from the College Board, Amtrak, the Boston Celtics, and the Gates Foundation. Mims earned a B.S. in Mathematics from the University of South Carolina, an M.A. in Teaching Mathematics from Simmons College, a second masters in Educational Leadership from Simmons College, and a Doctorate in Educational Leadership from Boston College.
Tweet of the Week:
Click here to read a transcript
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 cato.org 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 pioneerinstitute.org. 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.
Guest:
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, CNN.com, National Law Journal, National Review Online, Reason.com, 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.
BOSTON – From 2017 to 2021, Boston Children’s Hospital had the highest commercial prices relative to any other Massachusetts hospital, according to a new interactive website, MA Hospital Relative Price Tracker, developed by Pioneer Institute.
Of the 15 hospitals with the highest commercial revenue, Children’s ranked first in relative commercial prices during those years. For 2015 and 2016, Massachusetts General Hospital (MGH) ranked first in commercial prices relative to other institutions.
“The Commonwealth has for many years had among the nation’s highest healthcare costs and prices,” said Pioneer Senior Fellow in Healthcare Barbara Anthony. “The data show that a few major Massachusetts hospitals have relative commercial prices that range from about 25 to 100 percent of average commercial prices.”
“Commercial revenue” is the negotiated amount paid to hospitals by health insurance companies and large employers. It does not include government payers. “Relative price” compares the average prices charged by a hospital to the average of prices charged by all hospitals.
Relative price data are available from 2013 until 2021. The hospitals with the highest relative prices for commercial healthcare were Children’s, Dana-Farber, Brigham and Women’s, and MGH. The lowest were in the Southcoast Hospitals Group: Charlton Memorial in Fall River, St. Luke’s in New Bedford, and Wareham’s Tobey Hospital.
The MA Hospital Relative Price Tracker displays relative price and facilitates relative price comparisons among hospitals.
Relative price data is collected and reported by the Commonwealth’s Center for Health Information and Analysis (CHIA) and is an aggregate measure used to evaluate price variations among different hospitals. It is recalculated annually based on data collected from commercial payers and includes information on private commercial insurance and commercially managed public insurance products such as Medicare Advantage and Medicaid Managed Organizations/Accountable Care Partnership Plans.
Relative price values take into account differences in patient condition, types of services delivered, and the different insurance product types payers offer to their members.
The average price among all hospitals will have a relative price of 1.0. A relative price of 1.5 means that a hospital charges 50 percent higher than the average of all Massachusetts hospitals. Similarly, a relative price of 0.84 means that a hospital’s prices are 16 percent below average.
“Efforts have been made to tame the rate of healthcare cost growth in Massachusetts, such as creating the Health Policy Commission, which sets a soft ceiling for spending,” said Pioneer Executive Director Jim Stergios. “But we continue to see large disparities in relative prices levels between some major institutions and the rest of the market.”
A hospital’s relative commercial price ranking has generally remained stable over time. In addition to an annual relative price ranking of all Massachusetts hospitals from 2013 to 2021, the MA Hospital Relative Price Tracker includes a subsection on all hospital systems in Massachusetts, the individual hospitals within each system, and the relative price levels of such hospitals. The tracker application includes both a graphical and chart format.
Relative price is not the same as the actual price charged by any particular hospital. The relative price metric cannot be used in connection with the actual price of any one particular service or bundle of services at any hospital.
Dr. Adrian Mims on The Calculus Project & STEM
/in Education, Featured, Learning Curve, News, Podcast /by Editorial StaffRead a transcript
The Learning Curve Adrian Mims
[00:00:00] : Alisha: Welcome back to The Learning Curve podcast. I’m your co-host this week, Alisha Thomas Searcy and joined by my friend Albert Cheng. Welcome Albert.
[00:00:42] Albert: Hey Alisha, good to be with you this week as always. Hope you’re doing well.
[00:00:43] Alisha: Oh yeah. I hope you are too good. Absolutely doing well. I’m excited about our interview today and I know you are. Mr. Math expert.
[00:00:54] Albert: Well, expert. I don’t know if that’s being too generous, but certainly love math.
[00:00:59] Alisha: It’ll be fun for sure. So let’s jump in with our stories of the week. This week I chose the story entitled “anti school choice.”
[00:01:08] Alisha: Texas Republicans beg public schools to rescue them. Now, if that title was not enough, the story itself is: Eyebrow raising, I’ll just say. I know that we don’t get too much into politics on this podcast, so I won’t go down the political road, but I will say, because it’s important to me to note that I’m not a huge fan of some of the policies of Governor Abbott in Texas not related to education, but some other things, so I have to go on record for saying that, but I have to tell you, this is very interesting, Albert, so in this article, it talks about the fact that there’s an election today, actually.
[00:01:47] Alisha: Their primary is happening in Texas and this Republican governor has essentially selected 10 of his own members of his party who are in the House to [00:02:00] primary them or to at least support. Opponents who are in their primary solely on the issue of school choice. And so why is this interesting?
[00:02:09] Alisha: As a Democrat, I have seen this happen on my side of the aisle. I have certainly been primary because of my support of public school choice in particular. I have not seen this with Republicans, and I certainly have not seen a governor. Go as far as to work against 10 of his or her own members solely on school choice.
[00:02:31] Alisha: And part of me is a little bit intrigued by this because, I feel like if you’re going to stand up for kids, if you’re going to stand up for empowering parents and you recognize that part of that standing up is electing people who are with you, I think that that’s a very powerful statement.
[00:02:47] Alisha: At the same time, it is a little bit troubling to have a governor. Again, opposed 10 of his own members on one issue. And even though public school [00:03:00] choice in particular for me is a really big issue and something that I, I’d be willing to make a lot of political risks around, I’m not sure if it sets the right example that if you disagree with your party on one particular issue, we should open the floodgates to allow folks to primary you work against you. So that’s one very interesting piece of this story to me. The other interesting piece is it’s very odd when you hear that Republicans are trying to get the teacher’s unions and public school employees to help them on their…
[00:03:34] Alisha: Political campaigns. Not only is it illegal right to get school personnel to work on your campaign or in particular to campaign to them, asking them to vote within the Republican primary to protect public education, which is what some of these sitting legislators are doing. But certainly, there’s got to be a line right between the electoral politics and what’s happening in public education, but politically, it’s also interesting [00:04:00] because generally, you see Democrats more aligned with teachers unions and public schools.
[00:04:06] Alisha: So this whole thing is quite interesting. I cannot wait to watch CNN or Fox, whatever we need to watch tonight to find out the fate of these 10 legislators. Because if in fact this governor is successful it’s going to set off a firestorm. I’m not just in Texas, but I would argue across the country because he’s sort of creating a new playbook for what governors can should, or maybe should not do.
[00:04:35] Alisha: In terms of their own members. And the final thing that I will say is I believe very strongly again, that parents should have options. And so I appreciate the energy and the focus and the sense of urgency to get people elected who support this too. But I just don’t know if this is the right way to do it.
[00:04:51] Albert: Yeah. We’re in this brave new world of politics. The Bully pulpit is a thing and new playbook, [00:05:00] new strategy. So, we’re all recording this before we know the results. So, I’m anxious to see what, will happen.
[00:05:05] Alisha: Same here.
[00:05:06] Albert: We’ll see. I got another story and well, you know, sorry, everything’s politicized these days, but hopefully I can talk about this without politicizing it. Cause you know, here’s the topic. It’s early childhood education in particular. Headstart.
[00:05:18] Albert: So there’s an article out this week from Politico talking about the president’s plan to increase pay for our early childhood educators. I mean, this has been a challenge particularly in early childhood education, Headstart in particular to get teachers to Stay and be in the positions, you know, to reduce turnover and the staff.
[00:05:40] Albert: And so, talking about policy levers it looks like the, the Biden administration is looking to increase salaries by about 10,000 actually on average. And actually, as part of the plan, there’s also some pay increases. It looks like for aides, janitors, and, other folks. So, you know, so they’re making that push, I think to try to address this [00:06:00] problem of teacher turnover and, and staff longevity or, or lack of it but sucks cause there’s always these trade-offs and so, you know, what this article talks about too, is that actually in order to identify the funds, to raise compensation The plan’s also going to have to cut back on the number of available seats in Headstarts as well.
[00:06:21] Albert: So, as I was reading this, I’m like, well, I guess it’s tough to escape the, the real trade offs that we often make. And I guess this is the tough thing that policymakers have to face. You know, how do you weigh these trade-offs? Now on the other hand, the article does mention that enrollment in Headstart has been declining.
[00:06:37] Albert: And so, so maybe having fewer slots is actually you know, meeting the demand that’s actually out there to put it one way, but we’ll see how this all shakes out. Yeah, there’s always this, tension between wanting to pay your teachers more to, attract the best candidates. but then also being in the black for the budget. You know, not going red in other aspects. And so, yeah, I know [00:07:00] I faced this being on the board of a little private school here in town. trying to weigh these trade offs, but not an easy task to do, but we’ll see how this all shakes out.
[00:07:08] Alisha: Yeah, it is tough. And I would like to believe that it’s a false choice because We all know that the federal government has lots and lots of money. The question is where we’re spending it. But I do think a really important priority. You know, Headstart is a federal program that’s been around for a very long time, and we need programs like that to make sure kids are ready.
[00:07:29] Alisha: You know, when they get to their kindergarten or K through 12 experience. So it is tough, but I understand if you want to at least get more attractive candidates, if you will, right, because some of these folks are being paid pennies and it’s kind of sad the very difficult job that they have to do.
[00:07:45] Alisha: So hopefully they will find some funds, but I think you raised a good point about the enrollment being down. So hopefully that means they can have. less slots because they don’t need them while they also are funding the teachers at the appropriate level. So thank you for that [00:08:00] story. Well, coming up Professor Cheng we have with us, Dr. Adrian Mims senior, who’s the founder and CEO of the calculus project. We’ll be right back.
[00:08:30] Albert: Dr. Adrian Mims Sr. is the founder and CEO of The Calculus Project. Its goal is to increase the number of Black, Hispanic, and low-income students enrolled in Calculus Honors and AP Calculus for STEM careers. The Calculus Project is impacting over 7, 000 students in over 100 Middle and high schools in Massachusetts and Florida.
[00:08:53] Albert: And it has won awards from the college board, Amtrak, the Boston Celtics and the Gates Foundation. [00:09:00] MIMS earned a bachelor’s in science and mathematics from the University of South Carolina, a master’s in teaching mathematics from Simmons College, a second master’s in educational leadership from Simmons College, and a doctorate in educational leadership from Boston College, Dr. MIMS. It’s a pleasure to have you on the show. Welcome.
[00:09:18] Adrian: Pleasure to be here. Thanks for having me.
[00:09:21] Albert: You’re the founder and CEO of the calculus project which seeks to increase minority and low-income students’ access to high-quality math as well as STEM careers Why don’t you begin by sharing with our listeners your own background?
[00:09:34] Albert: You, like me are a math major. So, you know, talk a little bit about that background the origin story of The Calculus Project.
[00:09:41] Adrian: I have to go all the way back to Spartanburg, South Carolina, because as I, embarked on this journey, a lot of things became very apparent to me.
[00:09:53] Adrian: And that’s why I’m so passionate about the work I do with the calculus project. But I graduated from James F. Burns High [00:10:00] School. For those people who are not familiar with the James F. Burns High School is in Spartanburg County and it did not integrate until 1969. So somehow, you know, they missed the memo about Brown versus the Board of Education and the Civil Rights Act of 1964.
[00:10:20] Adrian: They were in no hurry to integrate. I graduated in 1989. And even though I graduated from that 20 years later. It was still a racially hostile and it’s sometimes violent environment. And I went through school in one track, which was called college prep at another track, which was vocational students would go to.
[00:10:45] Adrian: Go to the high school for half the day and the rest of the day, they go to Artie Anderson and study fleet mechanics or construction or whatever. And then there was another track that just graduated from high school and they ended up either going into the military [00:11:00] or working in the mills. so, reflected, I found my old report card and I looked at my grades and I noticed when I took algebra to my grades were as follows. First quarter B, second quarter B took the mid-year F. Third quarter B, fourth quarter B took the final, got an F and my final grade was a C. Now, no one ever said anything to me about how is it that this, kid is failing the mid-year and the final, but he’s getting B’s through, the first and fourth quarters.
[00:11:34] Adrian: And I didn’t find out until later why that was happening. I go off to University of South Carolina. I decided to major in electrical engineering. I ended up changing my major, my junior year at a mathematics, which was tough. Because I had to take a lot of 500-level math courses together that they tell you never take at the same time.
[00:11:55] Adrian: Additionally, I’m first generation to go to college and I was working two [00:12:00] jobs to help. pay my way through college. So I had that additional burden. And so, I was scared because I realized my sophomore year I didn’t know how to study. And so when I reflected back on what was happening in high school, their lives, the evidence.
[00:12:16] Adrian: So, I got lucky. I ran into a young man from Togo who was there with his wife and children pursuing his doctorate in mathematics. His name is Christopher Demba. He saw a young man in the student lounge, struggling, trying to figure everything out with all those budget-level math books. And he came over and he said, can I help you?
[00:12:35] Adrian: And so he became my tutor. So I have my degree in mathematics from the University of South Carolina, but I got tutored and I got help. And so I credited him, Kofi Fadimba, for the calculus project. I moved to Boston. I started working at Brookline High School as a Metco tutor. For those people who may not be familiar with METCO, METCO is a voluntary [00:13:00] busing program that started here in Massachusetts in the late 1960s that bused students from Boston to wealthy suburban districts with the idea that if those students are attending schools in those districts, they will inherently benefit from those resources and do well in school.
[00:13:19] Adrian: I had just my degree in mathematics, no education courses. So I got an apprenticeship voucher for the students in math and physics. And while I was there at Brookline for 19 years, I became a full-time math teacher, associate dean, summer school director, and dean of students and went to graduate school a lot and got my doctorate from BC and my dissertation title is Improving African American achievement in geometry honors from those findings came the calculus project.
[00:13:49] Albert: Amazing. Speaking of The Calculus Project, there’s another project out there. The Algebra Project, this is founded by the late civil rights leader and educator, Bob Moses. So this is a national program aimed also at helping low-income students of color achieve math skills that you need for college math.
[00:14:06] Albert: Yeah, talk about his work in math education and, did he have an influence on you as you spearheaded calculus project?
[00:14:13] Adrian: Absolutely. I mean, I think pursuing my doctorate In education at BC was one of the best things that ever happened to me because prior to that, I never heard of the algebra project.
[00:14:25] Adrian: So, anyone who’s ever, written a dissertation, you have to do a lit review, a lot of reading and I learned about the algebra project and so without a doubt, he influenced me. I feel like the work I’m doing, I’m standing on his shoulders. He’s much bigger than I am in terms of his scope and what he did.
[00:14:47] Adrian: He was a visionary. He said back in the late, you know, the 1960s that algebra in the eighth grade was important and One of the quotes I remember from his book, Radical [00:15:00] Equations, still rings true today. He said, Today I want to argue the most urgent issue affecting poor people and people of color is economic access.
[00:15:09] Adrian: In today’s world, economic access and full citizenship depend crucially on math and science literacy, and it’s still true today. so, I feel fortunate. I wanted one of my biggest regrets. I met him a couple of times. I wish I had spent more time picking his brain, talking to him. I’m really good friends with two of his children, Omo and Maisha Moses.
[00:15:32] Adrian: That is one of my regrets that I didn’t take advantage of those opportunities.
[00:15:37] Albert: Well, let’s talk about another a little bit more well known know, high school math teacher, Jaime Escalante. So in the eighties, he was made famous in that movie stand and deliver about his work in Los Angeles public high schools.
[00:15:50] Albert: And assuming listeners know this movie, but I don’t know, maybe I’m mistaken, right? He produced remarkable AP calculus results with his students. Yeah, it could you talk about if he was [00:16:00] a influence on you? Are there lessons from his career? That you picked up on there’s these tensions there between high quality and academic math instruction and, and generally lower expectations we find in a lot of public education.
[00:16:14] Adrian: Oh, without a doubt. I mean, when you look at the calculus project, there are five. components. And when I say that it’s research supported, that research came from watching what other people did that was successful. So Stand and Deliver interesting enough, is one of the movies that we show students in the calculus part of our pride curriculum.
[00:16:37] Adrian: What Jaime Escalante did is what I wish more math educators would do. That is walk into some of the. Toughest situations and look at the students and say, I believe in you. And if you fail it’s because I failed you and I’m going to give you a hundred percent, give you everything that the kids who are [00:17:00] performing above the achievement gap have, I’m going to give you everything.
[00:17:04] Adrian: I’m going to make sure that I have high expectations and give you the support. And so that’s one of the reasons why, you know, he’s one of my heroes as well. If you look at what he did, he focused on good instruction, delivering additional time on tasks for students to learn the material. He had a belief in the students that helped them believe in themselves. And in the movie, he talked about Ghana, which means the desire to make sure that the students had that heat really focused on the community. If you get that movie, he built a community with those students. That’s very important. The sense of belonging basically developed a culture of math and collaboration and showed how the math was relevant, coupled with high expectations.
[00:17:50] Adrian: And there’s one particular scene in the movie. I don’t know if you remember this. He’s in the car with this guy who wants to quit school and become a mechanic and [00:18:00] Jaime almost crashes the car because he tells him to take a turn at the last minute, but he says something that’s very interesting to the young man in the passenger seat, he says all you see is the turn and not the road ahead. And so that’s poignant because in terms of students making decisions now and parents. Helping their children make these decisions. They’re trusting educators to give them the best advice. But in too many cases, they don’t necessarily see the road ahead of some of the unintended consequences of some of the choices that they’re making at the encouragement of some educators.
[00:18:38] Albert: Yeah. Well, you know, you’re, just talking about having high expectations for our, students and, keeping rigor in the curriculum. And so, being in Massachusetts in the nineties, Massachusetts was the leader for it. And setting up, high academic standards particularly in math.
[00:18:55] Albert: And so, all this was happening while the math wars were kind of raging across [00:19:00] American public education. So, could you just talk about the 2 sides of the math wars and how that informed your work and how it related to your work.
[00:19:08] Albert: And then also just with respect to the math standards in Massachusetts. Yeah. How did that relate to your work? And, perhaps became a benefit and added value, to what you’re trying to do.
[00:19:17] Adrian: There’s so many math wars that are going on right now. Yeah. It’s almost like picking your battle.
[00:19:24] Adrian: I think what’s interesting you know, when you think about education, when I think about education, you know, you got to think about, back in 1837, you know, with Horace Mann, you know, he was the secretary of education. Massachusetts really outperforms all of the rest of the states.
[00:19:41] Adrian: And I think it’s because there’s a culture here with expectations and education. You know, when you think about it. Massachusetts, you know, we’re like one of the most educated states. When you look at the percentage of people who have a bachelor’s, I think it’s close to 44 percent nationally.
[00:19:57] Adrian: It’s like 38 percent and then even [00:20:00] with professional degrees and in their colleges all over the place. And so what that leads to is high median household incomes. So it’s just. It’s a culture that continues to flourish and there’s an expectation that school officials, school committee members, superintendents, principals, and teachers are going to be held to a high standard by citizens.
[00:20:26] Adrian: So that drives a lot of it, I believe personally was interesting enough though, when I said earlier about, you know, how median household incomes. There was also an article in the Boston Globe that said the median net worth of someone who identified as black or African American in Boston is 8.
[00:20:44] Adrian: So on one hand, Massachusetts is amazing and doing exceptionally well, but it’s not working well for everyone. Unfortunately, and, you know, with regards to the standards when you look at the math [00:21:00] frameworks and common core standards, they’re really setting a trajectory for students to take algebra in the ninth grade, not necessarily the eighth grade, but a lot of the districts don’t pay attention to that.
[00:21:12] Adrian: They, you know, you got some students taking out as early as seventh grade. Yeah. Everybody is staying, I guess, within the framework for the most part, but not really sticking to it with fidelity and every place is doing their own thing.
[00:21:26] Alisha: I’m so glad you mentioned that. First of all, it’s great to have you.
[00:21:30] Alisha: Your story is quite inspiring and to be honest, as someone who’s not a math person this is quite fascinating to learn from you. So thanks for what you do. you talked about this algebra one piece. Um, In 2008, the prestigious U. S. National Mathematics Advisory Panel reviewed more than 16, 000 research publications and policies on this very topic.
[00:21:52] Alisha: And so can you talk more about Algebra One as this gateway course to all higher-level math? And why, [00:22:00] even after this advisory panel came out with this research, that we’re still continuing to struggle in America with teaching Algebra one in the eighth grade. What is this about?
[00:22:11] Adrian: Wow, that’s a long answer.
[00:22:14] Adrian: And I try to make it as succinct as possible because there’s so many. factors that contribute to this. I think the first thing is that you know, math is very comprehensive. You’re not going to be successful in algebra if you’re not proficient in arithmetic. And then when you follow the sequence of courses.
[00:22:36] Adrian: from pre-algebra, the algebra to geometry, the algebra to intrigue, the pre-calculus, it’s all comprehensive and you need all of that previous knowledge to be able to thrive and be successful in a calculus course. And there are a lot of data and research around the whole idea of course taking patterns and what that means [00:23:00] for students during high school and then post-secondary.
[00:23:03] Adrian: One of the challenges though and you know, this is going to sound political, but there is no national curriculum for math and curricula in general, English, social studies, science There is no national curriculum. And when you just look solely at Massachusetts I was on for the state a mathematics pathway task force, and I learned a lot from my participation on that task force.
[00:23:30] Adrian: One of the things I learned is that just for 8th grade alone. They are about 33 different math courses offered in the eighth grade, just in the eighth grade, 33 different courses. And just because a school says that they’re teaching algebra doesn’t mean that they’re teaching algebra.
[00:23:48] Adrian: So that really makes our jobs very challenging at the calculus project, because when we work with districts, they’ll say, okay, well, we’re teaching these particular courses. And I say, okay, that’s [00:24:00] really sweet. That’s nice. Let me see the syllabi because what’s happening in some cases, there are students who are being remediated and no one knows it except the teachers.
[00:24:12] Adrian: The students don’t know what the parents don’t know it. Because when you look at what the course is called and you look at what they’re being taught. It is not college preparatory material. Another thing I just want to say is that with regard to why algebra is really tough, schools struggle with vertical alignment with their curriculum.
[00:24:33] Adrian: And what I mean when I say that is, what should be taught, how it should be taught and how much time you spend teaching it. And too often teachers. They’re spending a lot of time on the wrong content, and so you just can’t go into a school district and say, hey, algebra for all eighth graders without looking at what is being taught from kindergarten all the way up to eighth grade, and [00:25:00] even some of the districts that identifies the best school districts really struggle with figuring out what needs to be taught, how it needs to be taught and for what period of time.
[00:25:09] Alisha: Very interesting and helpful. You mentioned that we don’t have a national math curriculum. We do, or at least we attempted to have. Math standards, right? So a decade ago D. C. Based educational trade groups, the federal government, and major foundations. I was in the legislature at that time, so I’ll include policymakers.
[00:25:34] Alisha: We’re all pushing common core math national standards, which ultimately most states adopted. And I’ve been wanting to ask someone this question for a long time. So can you talk about your thoughts on Common Core Math and why, since 2010, we still have not been successful in delivering positive math results for American students?
[00:25:59] Alisha: What happened?
[00:26:00] Adrian: Well, I think somewhat answered the question a little bit when you said most states adopted it. Not all states adopted it. that’s one challenge. But I mean, when you think about it. Ed reform that comes from the top down, meaning from the federal government down to the actual towns and school districts.
[00:26:20] Adrian: We’ve never been successful at education reform, whether it’s no child left behind or the common core standards. What happens is, that what we’re saying from the federal level is really taking a cookie-cutter approach. But you can’t take a cookie-cutter approach when it comes to education reform, because what happens in districts is really controlled locally by the school committees and the school boards.
[00:26:48] Adrian: And because we have an actual framework, it gives a lot of latitude, so you can operate within the confines of the framework, but that creates a lot of variability [00:27:00] there. I think the other challenge too, is some areas of this country do a better job recruiting and retaining. Teachers in particular, math and science teachers, in other areas struggle significantly because they don’t pay very well.
[00:27:17] Adrian: If you’re a math or science teacher, you can go into the private sector in some areas of the country and make two or three times that amount. And since the pandemic, these jobs in the private sector are even more attractive because you can work at home for three days and go in the office for two days.
[00:27:32] Adrian: And so going into the teacher profession, one of the biggest attractions was the fact that you have your summers off people are working from home, which is almost just as comfortable for them. So, state level down to the actual towns, you have just a lot of. Disparity in terms of how they’re teaching math.
[00:27:56] Adrian: And I think that goes back to what I said earlier. The fact that you [00:28:00] have 33 different math classes for the 8th grade. deviating a lot from, I guess, the spirit of what people thought would result from coming core math.
[00:28:12] Alisha: Yeah, understood. And I think it just speaks to. Many of the challenges that we have in our public education system, right?
[00:28:20] Alisha: So no matter what the content area is, if you don’t have highly effective teachers who are well trained, you know, people are aligned, all of that, you kind of end up with the same results regardless of the content area. So we appreciate that. I want to continue to talk about math scores and where we are in the recent U.S. NAEP scores it was revealed that two decades of already modest progress are nearly gone as national math results hit historic lows. And that’s even in the decade before COVID. where two-thirds of the states experienced declines in math, which were greatly worsened, we know, by the pandemic. And [00:29:00] so, imagine you are talking to educators and policymakers and other folks within education.
[00:29:07] Alisha: How do you think we can address this chronic math underperformance, these wide achievement gaps, and the pandemic learning loss?
[00:29:17] Adrian: When it comes to math, what I would do I would take a multi-pronged approach. And the first thing that I would do is, when you look at kindergarten, first grade, second grade, as soon as students enter the schoolhouse, there are already gaps, but the thing is, is that, when you look at first, second and third graders, the gaps aren’t as great, but when you follow a particular class all the way up to their senior year in high school, those gaps widen.
[00:29:48] Adrian: So one of the things that I would do, I would make a significant investment in resources in K to three actually elementary all the way up [00:30:00] to 12th grade. The interesting thing is, is that if you start early With interventions, and when I say interventions, 1 is I mentioned before about the vertical alignment.
[00:30:10] Adrian: That’s important. But also, if you’re assessing students, and you see that they’re already behind, then create opportunities for them to have more time to learn the content, either extend the school day. or create learning opportunities during the summer to mitigate summer learning loss. There has to be some time built in for students to get ahead.
[00:30:33] Adrian: And so that takes a significant investment in time and resources. I mean, we’re dealing with a school system right now where there are teachers who are buying their own supplies for the classroom. I think that’s utterly ridiculous. Absolutely. We have to get very serious about education. I call it the quiet crisis because don’t necessarily see it on TV. You know, the number of teachers who will leave the profession never to return. you never [00:31:00] understand that some of the students, the teachers that they have before them are permanent subs who don’t necessarily know the content. So that is a huge piece too.
[00:31:10] Adrian: We have to build in those supports and for Those students who are in middle school and in high school, we have to have those same interventions as well. And I would even add that we need to make sure that we’re incorporating and making it mandatory that students understand financial literacy.
[00:31:26] Adrian: We can make it an elective or we could integrate it into the math courses, but no student should graduate from high school without some basic fundamental knowledge about financial literacy.
[00:31:40] Alisha: Yes, and amen. I’m so glad you said that. So my final question for many decades has been international comparisons in K 12.
[00:31:51] Alisha: So you’ve got the Trends in International Mathematics and Science Study, also known as TIMSS, and the Program for International Student Assessment. Pizza. [00:32:00] Can you compare the level of academic preparation in math that high-performing international students experience to that of American students? And what are some of the countries you think are most effective at teaching math at the K-12 level?
[00:32:14] Adrian: Yeah, I mean, immediately think about Finland. I mean, here’s what we have to do in the United States. We have to treat teaching as if it’s a profession. And unfortunately, that doesn’t happen. When you think about becoming a teacher in the United States, there are so many pathways to becoming a teacher.
[00:32:36] Adrian: And just to give you an example, and this is just an example, you can have a bachelor’s and you can be a landscaper with a bachelor’s degree. And literally within two years, You could be in a classroom teaching, or you could be running a school. And when you think about other whether you’re going to be an airline pilot or [00:33:00] whether you’re going to become a cardiologist.
[00:33:01] Adrian: There’s only one way you’re going to fly for Delta United or Spirit Airlines. There’s only one way you’re going to become a physician. And what we have to do, we have to make sure that the graduate schools of education are doing an adequate job preparing teachers for what they’re going to see when they really get out there into these schools and in the classrooms.
[00:33:24] Adrian: I’ll give you an example. We have urban education and then we have regular education. why aren’t teachers or. future educators also learn about urban education as well as mainstream education courses. I never really understood that because now we have a situation where some districts that were once kind of like urban-suburban, they’re becoming urban suburban uh, schools.
[00:33:52] Adrian: And so What other countries do, they do a good job at training teachers, paying teachers well, and [00:34:00] retaining teachers. We really struggle with really good induction programs. It’s hard for us to retain teachers. One last thing, I just like to add that there’s a huge push to add more diversity to the teaching profession.
[00:34:15] Adrian: And in some cases, and I’ve had several conversations with. Brand new teachers of color. They don’t end up staying in the profession very long because what happens as soon as they get into a particular school they put them with some of the most challenging kids. And in a lot of cases, they’re challenging kids of color and they don’t provide them with the support that they need leadership really matters and the average career superintendent in the school district is about three years there’s high turnover there. So a structural problem. We have to build in the support and make sure that teachers have everything that they need.
[00:34:57] Alisha: Absolutely. Again, I want to thank you, [00:35:00] Dr Mims. Your work is so impactful and I think the things that you’ve shared today As I said before, it can solve a lot of problems in education, right? Leadership, effective teaching, the right induction programs. How do we retain great teachers? All of those things are the challenges that many schools are facing.
[00:35:18] Alisha: And so I think if people listen, we heard some really good practical advice today. So thank you, thank you, thank you for all that you’re doing and being with us on The Learning Curve.
[00:35:27] Adrian: Thank you so much. I really enjoyed it. Have a great day.
[00:35:53] Alisha: Thank you, Dr. Mims, for joining us. That was quite fascinating, Professor, wasn’t it?
[00:35:58] Albert: Oh, yeah. Love hearing about this work. Really important and, Certainly always love talking about math.
[00:36:02] Alisha: Yes, you do. I love it. So before we go we definitely want to do the tweet of the week.
[00:36:09] Alisha: And this one. Is from NASA and it’s celebrating Women’s History Month. Yay for Women’s History Month celebrating women astronauts in 2024. And so what was very cool is that in this article, it talks about that as of February 29th of this year, 75 women have flown in space of these women, 47 have worked on the International Space Station.
[00:36:34] Alisha: As long duration expedition, crew members, visitors on space, the list goes on. So very, very cool. I love this as a way to celebrate women. We think about all kinds of careers that women are in. We don’t talk enough about aerospace. So this was very, very cool. So make sure you check out that article.
[00:36:54] Alisha: Albert, it has been wonderful as always to co-host with you. Thanks for joining this week.
[00:37:00] Albert: You’re very welcome. Always a pleasure to co-host with you as well.
[00:37:03] Alisha: Absolutely. And I want our listeners to join us next week. We will have Professor Joan Hedrick. She is the Charles A Dana professor of history emeritus at Trinity College and a Pulitzer prize-winning author of Harriet Beecher Stowe, A Life.
[00:37:20] Alisha: See you next week.
This week on The Learning Curve, guest co-hosts University of Arkansas Prof. Albert Cheng and Alisha Searcy interview Dr. Adrian Mims, founder of The Calculus Project. He delves into his mission to enhance math education for minority and low-income students, drawing inspiration from Bob Moses’s Algebra Project and Jaime Escalante’s teaching legacy. Dr. Mims navigates through the contentious “math wars” and underscores the pivotal role of Algebra I as a gateway to higher math. He also evaluates the negative impact of Common Core math standards, and proposes strategies to combat pandemic-induced learning setbacks and bridge the gap in math proficiency between American students and their international counterparts.
Stories of the Week: Albert spoke on an article from Politico about the Biden administration’s new plan for the Head Start program; Alisha discussed an article from National Review on school choice in Texas.
Guest:
Tweet of the Week:
https://x.com/NASA/status/1763649550479241501?s=20
Contours of Content Curation: SCOTUS Hears Online Free Speech Cases
/in Featured, News, Podcast Hubwonk /by Editorial StaffClick here to read a transcript
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 cato.org 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 pioneerinstitute.org. 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.
Guest:
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, CNN.com, National Law Journal, National Review Online, Reason.com, 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.
Boston Children’s, MGH Among Massachusetts Hospitals with Highest Relative Commercial Prices
/in Featured, Health Care, Health Care Policy (MA), Healthcare, News, Pioneer Research /by Editorial StaffSome hospitals show variations in relative commercial price as high as 100 percent of average prices
BOSTON – From 2017 to 2021, Boston Children’s Hospital had the highest commercial prices relative to any other Massachusetts hospital, according to a new interactive website, MA Hospital Relative Price Tracker, developed by Pioneer Institute.
Of the 15 hospitals with the highest commercial revenue, Children’s ranked first in relative commercial prices during those years. For 2015 and 2016, Massachusetts General Hospital (MGH) ranked first in commercial prices relative to other institutions.
“The Commonwealth has for many years had among the nation’s highest healthcare costs and prices,” said Pioneer Senior Fellow in Healthcare Barbara Anthony. “The data show that a few major Massachusetts hospitals have relative commercial prices that range from about 25 to 100 percent of average commercial prices.”
“Commercial revenue” is the negotiated amount paid to hospitals by health insurance companies and large employers. It does not include government payers. “Relative price” compares the average prices charged by a hospital to the average of prices charged by all hospitals.
Relative price data are available from 2013 until 2021. The hospitals with the highest relative prices for commercial healthcare were Children’s, Dana-Farber, Brigham and Women’s, and MGH. The lowest were in the Southcoast Hospitals Group: Charlton Memorial in Fall River, St. Luke’s in New Bedford, and Wareham’s Tobey Hospital.
The MA Hospital Relative Price Tracker displays relative price and facilitates relative price comparisons among hospitals.
Relative price data is collected and reported by the Commonwealth’s Center for Health Information and Analysis (CHIA) and is an aggregate measure used to evaluate price variations among different hospitals. It is recalculated annually based on data collected from commercial payers and includes information on private commercial insurance and commercially managed public insurance products such as Medicare Advantage and Medicaid Managed Organizations/Accountable Care Partnership Plans.
Relative price values take into account differences in patient condition, types of services delivered, and the different insurance product types payers offer to their members.
The average price among all hospitals will have a relative price of 1.0. A relative price of 1.5 means that a hospital charges 50 percent higher than the average of all Massachusetts hospitals. Similarly, a relative price of 0.84 means that a hospital’s prices are 16 percent below average.
“Efforts have been made to tame the rate of healthcare cost growth in Massachusetts, such as creating the Health Policy Commission, which sets a soft ceiling for spending,” said Pioneer Executive Director Jim Stergios. “But we continue to see large disparities in relative prices levels between some major institutions and the rest of the market.”
A hospital’s relative commercial price ranking has generally remained stable over time. In addition to an annual relative price ranking of all Massachusetts hospitals from 2013 to 2021, the MA Hospital Relative Price Tracker includes a subsection on all hospital systems in Massachusetts, the individual hospitals within each system, and the relative price levels of such hospitals. The tracker application includes both a graphical and chart format.
Relative price is not the same as the actual price charged by any particular hospital. The relative price metric cannot be used in connection with the actual price of any one particular service or bundle of services at any hospital.