What do Murthy and the other recent Supreme Court decisions mean for Free Speech? For Trump? The Presidency? Carl Szabo from NetChoice breaks it all down for us.

[00:00:00] Welcome back to the Political Life. Today we have another episode from you. We are back in the nation's capital. Of course, I am not in the nation's capital. I would like to be your and our guests Carl Szabo from NetChoice, the vice president and general counsel. He may not actually be in Washington. He may be in the Washington area at an undisclosed location.

[00:00:33] And given all his activity at the Supreme Court, he may need to be at an undisclosed location. NetChoice for those of you that don't know is an association that works to keep the Internet free and open for speech and business endeavors and others.

[00:00:50] They have been very active at the Supreme Court. Carl is a very smart attorney and he has been working at NetChoice for over 10 years. And he has the distinguished honor of being our first guest, the first recording that we did for the Political Life podcast a few years ago, three or four years ago. I can't remember. Carl, it is so great to have you back on the show.

[00:01:20] Yeah, glad to be back. I mean, to think that I was the first recording and you still managed to keep this thing going and didn't get shut down. That is an accomplishment.

[00:01:31] And for those of you that are not familiar with NetChoice, you can go check out their website and their team and some of the things they've been doing. Carl, he attended Rice University and then Catholic University Law School where he graduated.

[00:01:50] In the very, very top of his class. And so Carl, today we are going to talk about, is there anything else you want to add about NetChoice that I didn't describe well or?

[00:02:03] I mean, it's pretty simple. We fight for free expression and free enterprise. And you know, as you were probably going to intimate, we're going to talk about the Supreme Court and Supreme Court decisions which have been fantastic this term for free expression free enterprise on the internet.

[00:02:22] For the most part, there's some some I disagree with but overall it's been really helpful for those of us who want to make sure that government is ultimately accountable to the people, to the voters, to the taxpayers.

[00:02:38] And so and for our listeners out there, we are going to be talking about Supreme Court cases that NetChoice has been engaged in such as Chevron and some of the other ones. Should we start with Murty maybe? Is that? Yeah, absolutely.

[00:02:54] So tell us about the case and tell us how the Supreme Court ruled. Yeah, so Murty is the Surgeon General of the United States of America. And this case was originally entitled Missouri v. Biden and it subsequently got changed and morphed a little bit.

[00:03:13] What it is ultimately about is the question of can the federal government force a private business in this case social media platforms to remove content? Can they pressure them? When does the government kind of cross that line between suggestion and censorship?

[00:03:35] So the case generated from a lot of the COVID activity that we saw out of the Biden administration, out of the Surgeon General, where the Biden administration allegedly told businesses like Twitter now called X, Facebook now called Metta, YouTube, many others to remove content related to COVID information.

[00:04:02] Stuff such as a doctor putting up a note post suggesting that masks don't necessarily block COVID. Something such as COVID origin discussions and those posts were subsequently removed.

[00:04:21] And so you then saw the state attorneys generals of Missouri as well as Louisiana joined together and decide to bring an enforcement action against the Biden administration for censorship, for violation of the First Amendment.

[00:04:41] Now, taking a step back. The First Amendment is a prohibition on government action. Everything in the Bill of Rights is essentially just a prohibition on government action.

[00:04:53] So you have the First Amendment saying government shall make no law limiting the free expression. You have the Second Amendment regarding right to bear arms. You have the Third Amendment.

[00:05:06] The government cannot put troops in your house. They are all limitations on the government. So the question before the court in the Murthy case was, did the Biden administration move beyond just suggesting to Facebook, suggesting to Twitter that they should perhaps remove this COVID information?

[00:05:28] Because according to the Biden administration, it was dangerous. It was incorrect, yada, yada. Or did the Biden administration cross that Rubicon from suggestion to coercion to censorship?

[00:05:45] And that was the question before the court. Now, the court looked at the facts and in a relatively surprising decision to many, it did the court did not actually make a decision on the facts.

[00:05:58] They said, you know what? We are not sure that the plaintiffs in this case, the state of Missouri and the state of Louisiana, we are not sure that the plaintiffs are the right plaintiffs for this case.

[00:06:15] We're not sure if they have quote standing and essentially the Supreme Court hunted it. Back down, it kicked out the case saying, you know what? This case should not have even gotten off the ground.

[00:06:28] There was no basis for the courts to even look at this case. You have the wrong parties. You may have the right defendants with respect to the Biden administration.

[00:06:39] But you don't have the right parties with respect to the people bringing the suit. So it was really disappointing to a lot of people who think that the Supreme Court just completely missed an important opportunity to make crystal clear how and how much the government can engage in censorship, coercion, or just simply making suggestions.

[00:07:04] Justice Alito and his dissent seem incredulous that they took this route. He thought there was plenty in the record to indicate that the plaintiffs had standing and disagreed with the majority, correct?

[00:07:26] Absolutely. And there were a lot of people out there who were really frustrated because they wanted a ruling. They wanted to make crystal clear that government cannot compel private businesses to censor speech.

[00:07:37] Now, there is another case that could potentially move forward with RFK Jr., where he had a lot of his posts removed and the alleged direction of the Biden administration. He would clearly have standing because he clearly was farmed.

[00:07:54] That was the question before the court. Were these so-called plaintiffs farmed by not being able to see posts? So that would be a much more clear-cut case, and then the court would essentially have to make a rule on the merits.

[00:08:06] The way that I've kind of approached this. Now, NetChoice, my company, filed an amicus brief in support of neither part. One of the concerns that we saw was that somebody would just make an allegation and then use it as a phishing expedition on private businesses.

[00:08:23] So saying, oh, Jim, you were clearly censored and we're going to sue the government, but Jim, we want to go through all of your files in doing so and use it essentially as an excuse to read your private and personal records.

[00:08:40] Now, that was where we were concerned. Unfortunately, the court kind of intimated that that's not possible. But there is real opportunity to address this and where that should be done is in Congress.

[00:08:53] Because ultimately, Congress can set the rules for how government agents act in their position. Today, if you're a federal employee, we've something called the Hatch Act, which prohibits.

[00:09:06] And everyone in DC is probably nodding their heads right now, or any federal employee is nodding their heads because when I was a federal employee, you get the emails when it's election times.

[00:09:14] You may not use your position for political purposes. And that's the Hatch Act and essentially a clarification of that. The government may not use its position for political purposes of censorship.

[00:09:28] And then you can also put in a dendym suggesting that anytime the government engages with these social media or internet websites, you could have it has to be signed off by a supervisor.

[00:09:42] You can have it must be provided in a report to the congressional agency in charge of oversight. So there are a lot of opportunities to be done that doesn't have to be in the court.

[00:09:53] So the court did what a lot of people were really frustrated with. They punted on it. They didn't rule. But there are still opportunities to address this fundamental danger of any administration being able to censor speech online.

[00:10:08] It seems like it's going to be a tough balance to find or a difficult line to draw as to, obviously it has some role if people are posting how to make weapons or something. And then that balance seems like it's going to be really difficult to strike.

[00:10:29] There are definitely times when you do want coordination and conversations between government and private businesses. Child sexual abuse material, terrorism as you identify. There are opportunities and avenues where that is appropriate, where we would maybe want that. And so there isn't necessarily a clear bright line rule.

[00:10:51] And that's kind of what you would ultimately want from a court. Yes or no, I can do this. And here not only did the court not even try to draw a line, it didn't even pick up the pen and send it back down to the lower courts.

[00:11:06] And what's the buzz that you're hearing in Washington as to what's the speculation as to why?

[00:11:14] I mean, there's the obvious, you know, it's political blah, blah, blah, going into an election, blah, blah, blah. Ultimately, though, I think a lot of the supporters of the plaintiffs in the Murthy case, a lot of the supporters of the plaintiffs had this initial, oh my gosh, I can't believe they did this reaction.

[00:11:38] But now they're starting to realize we can't get the courts to do this. Let's just do what is the right thing to do, which is enact legislation that makes it clear that government employees can't do this.

[00:11:51] There are pieces of legislation moving through Congress today. One is the protecting, protecting against government censorship act from Chairman Jim Jordan and passed UNAN, or sorry, not UNS.

[00:12:05] It passed out of the house right along party lines and sitting over in the Senate. And with respect to protecting free speech from government interference act, it's not being taken up in the Senate.

[00:12:16] And that's really distressing, I think for me as just an American, because I don't want any government left, right or center to have that power.

[00:12:26] And I wonder if Democrats will rue the day that they didn't seize this opportunity to limit that government power if they end up seeing a Republican administration in the White House.

[00:12:38] And it could just be that taking it face value, the majority did not think that the plaintiffs had standing. That's exactly it. I mean, we've seen other high profile issues get tossed on standing merits. Right, because it's one of the first things they look at to make sure.

[00:12:57] Yeah, or sent back down. So if you look at my cases, my company's cases that we had decided before the Supreme Court, it was Netroys and CCIA v. Moody and, sorry, it would actually be Moody v. Netroys and CCIA and Netroys and CCIA v. Paxdon.

[00:13:19] What happened there were the states of Florida and Texas back in 2001, 2002 rushed to address what they saw as quote unquote anti conservative bias in social media. So they both enacted similar but slightly different but mostly similar laws that said social media platforms cannot remove political speech.

[00:13:42] I'm really, you know, going high level on that. Yeah, I'll keep it high level. So they basically said you may not remove political speech social media platforms. And so Netroys and CCIA brought actions in the court against them on violation once again of the First Amendment.

[00:14:02] So what with Moody it was is the government censoring speech. And what we see in the Net Choice cases is, is the government forcing speech compelled speech so essentially forcing a newspaper to write an article it doesn't want to write or forcing a person to say something

[00:14:23] I want to say. So we brought the suit and went all the way up to the Supreme Court and it was decided a couple days after Moody and unlike Moody, the court did not dismiss the suit they actually kind of ruled and what they ruled was what we all would kind of expect.

[00:14:41] One, the First Amendment applies to the Internet and applies to social media platforms. Okay, that's pretty commonplace that it's kind of no duh, but a lot of people don't realize that or want to accept it.

[00:14:53] Number two, that when it comes to deciding what content is allowed or what content is disallowed, what content gets promoted, what content gets demoted the way the content is even organized whether you're going to allow pictures or videos or something like that.

[00:15:12] That is quote editorial discretion, which is also protected by the First Amendment. So websites, social media platforms, anyone creating content or hosting the content of others and organizing and deciding what to keep and what to leave enjoys First Amendment protections.

[00:15:33] And the government cannot say we don't like your organization, we don't like your content moderation rules. You must host this stuff in this way or you must host this content. So the court made crystal clear that these states can't do that.

[00:15:49] Now, there are a couple of like outside, you know, edge questions that they send a down to the lower court to address. But essentially it was a huge win for free speech, free expression on the on the Internet, as well as a huge win for net choice.

[00:16:05] And now the states were saying so the state of Florida was saying that they could not remove certain speech.

[00:16:13] Yeah, the state of Florida was saying, for example, if the head of the Ku Klux Klan wants to do a post on Facebook, maybe Facebook doesn't like, you know, clan members and says we will not allow your posts.

[00:16:32] The Florida and Texas laws would have forced Facebook to host that content.

[00:16:38] Or let's presume you in Texas, the requirement was you can't discriminate on political content based on viewpoint. So if my viewpoint is that the Holocaust happened, Facebook, YouTube X could not remove content from people saying denying the existence of

[00:17:02] the Holocaust. Because that would be quote viewpoint discrimination. If I believe that dog fighting is bad, you would have to allow every person who supports dog fighting on the platform. And in fact, Florida's law was written so broadly, so broadly, that it would apply to

[00:17:19] things we don't typically think of as social media platforms like Etsy. And so it would require Etsy to allow sweaters with swastikas to be sold. And of course that Etsy doesn't want that Etsy's users don't want that and Etsy's other sellers don't want that.

[00:17:39] But this is what was at stake. It's whether states can force a private business to host content, host views, host political opinions, whatever, that those private businesses didn't want to host. And this shouldn't surprise anyone.

[00:17:55] Because we have seen the US Supreme Court from time immemorial say that government can't do this. It can't force or compel speech and the simplest example, look, I'm somebody who's an originalist, right? So I believe in, you know, limited government pre markets.

[00:18:12] But you have decisions like Hobby Lobby, Masterpiece Cakes, which were centered around the right of a private business to decide what type of stuff it wants to host or make or create. And you see all these conservatives supporting those rulings and then suddenly once those freedoms are applied against them, they freak out.

[00:18:35] And so the court has made clear that once again, it does not matter left, right or center. Private businesses can decide what type of content they want to host. Let's move on to the Chevron case.

[00:18:51] Yes. Tell our listeners in a nutshell what the Chevron case entailed and how the court ruled.

[00:19:00] So for all the lobbyists and political people out there, this and this is also one of those majorly significant cases. So Chevron, as in the oil company is this line of case law created about 40, 40 some odd years ago where when Congress rights laws, they're not as clear as.

[00:19:30] They need to be. And what oftentimes happens is Congress would say, I'll pick on the EPA, for example, the Environmental Protection Act, they would say EPA, you need to go out and protect the environment.

[00:19:43] And the EPA would say, Chevron, you cannot drill for oil because that harms the environment. And we have the authority because Congress told us to go protect the environment.

[00:19:58] And Chevron would challenge that and the court would say, you know, we're going to assume for sake of argument that the administration that the agency is correct by default. Their interpretation of congressional authority is correct by default that they have the authority by default.

[00:20:16] Chevron, you are the defendant, you're the victim of this ruling. We are going to assume by default that you are guilty.

[00:20:25] So it is a presumption of guilt if you challenge the government when it comes to whether a federal agency has the authority from Congress to do what it claims to do. And this is the way that administrative law has operated for about 40 years.

[00:20:43] Well, enter Looper Bright and the situation here was there was a rule from Congress regarding fishing boats had to have radars when doing fishing in the Pacific Ocean, something to that effect.

[00:21:02] And so Looper Bright is a company on the East Coast there and their fishing boat company on the East Coast. And suddenly the government agency applied said to this fishing boat company, you must have this radar detection technology that we will require amongst Pacific boat fishers.

[00:21:27] And Looper Bright said, wait, no, that's that's crazy. You know, that's the Pacific Ocean. This is the Atlantic Ocean.

[00:21:35] And the agency said, well, you know, when Congress wrote this law, they said Pacific Ocean, but really all waterways intersect and therefore we have the authority under a Chevron deference approach, the way that administrative law had been applied for 40 years.

[00:21:52] When Looper Bright challenges that interpretation, the court automatically assumes the agency wins by default. Well, this case instead goes all the way up to the US Supreme Court and Supreme Court not pulling punches in any way said Chevron deference is done. Chevron deference is done.

[00:22:14] Courts should no longer assume that the administration, that the agencies by default have the authority they claim to have.

[00:22:24] And the argument for Chevron was, well, you have all the experts in the agencies and they really know the ins and outs of how these rules should or should not operate. And Congress knows that they don't know.

[00:22:35] Therefore, the federal, we defer to the federal agencies interpretation and the Supreme Court in a, you know, a 6-3 decision put a gravestone on Chevron deference.

[00:22:48] And there are a lot of people out there who think that this is a huge blow to the administrative state and it is. But conversely, if an agency has been doing what Congress allows it to do, then there's no problem.

[00:23:05] If the agency has been going beyond what Congress allows, then there is a problem. So at the end of the day, all that is being required is for agencies to do what they are constitutionally allowed to do.

[00:23:18] And if Congress has failed its job to be clear, to give those powers to the agencies, then guess what? Lawmakers got a lawmaker. And so that's Chevron. Very interesting. Boy, it got a lot of exposure, a lot of discussion.

[00:23:38] I think that's the best synopsis that I've heard of the case. And then was it corner post was related to that? Yeah, corner post was this. And were you guys engaged in that case also? No, we weren't really engaged in either of these, but they impact everything.

[00:23:58] They impact how everything will operate going forward. For example, Ned Choice engages a lot in making sure that government agencies aren't overstepping. State agencies aren't overstepping when they go to, probably, for example, regulate the internet or decide what content is allowed or is not,

[00:24:15] or try to shut down the ability of businesses to grow or make acquisitions. So all these cases, whether it is the annihilation of Chevron or this other case, which we're going to discuss in a moment called corner post,

[00:24:26] they both help advance the ability of businesses to operate and government to operate in a constitutional vein. So corner post was introduced, and I think it was Amy Coney Barrett who who read the, who wrote the majority.

[00:24:48] And she actually started by saying, look, I'm sure this is not the case. Everyone's here to hear because it was the same day that the net choice cases, my cases came out as well as the Trump immunity case, which most everyone talked about.

[00:25:03] But corner post is really important for almost every single business across the country. There is something called the Administrative Procedures Act. Time and time occasionally Congress will delegate what is called rulemaking authority to government agencies saying you can create a rule about this.

[00:25:25] You can update the law in these ways just to keep it up to date and stuff. And so there's this whole process in what's called the APA, the Administrative Procedures Act for rulemaking.

[00:25:36] One of the components of the APA rulemaking is that you are only able to challenge the legitimacy of that rule for six years. So if a rule is proposed and goes through the rulemaking and takes effect in, let's say 1981, you have until 1987 to challenge that.

[00:26:01] And then essentially that rule that the government, that the agencies create had the effect of congressional law after that six year window.

[00:26:11] The case in corner post was, wait a minute, should it be six years from when the rule is finalized or should it be six years from when the rule impacts me as an individual or as a business?

[00:26:27] So if I start a company today, clearly rules that were created 20, 30, 40, 50 years ago will impact me immediately.

[00:26:36] But I never had a chance, I wasn't even alive for some of those rules to be in a position to challenge their authority, whether they went through the proper rulemaking procedures, whether they are on a rational basis.

[00:26:50] So the Supreme Court flipped everything and said, no, the tolling, the six year shot clock begins when it impacts you, not when the agency finalizes the rules.

[00:27:03] And this is huge because think of every single business out there that operates on a business license created under one of these rules.

[00:27:11] Now those licenses are at risk because somebody who doesn't like that license can start a business and immediately sue the agency as to whether that rule was created properly or improperly.

[00:27:23] And there were a lot of rules created in the 60s, 70s and 80s where the government didn't really go through proper rulemaking. They just kind of used as their basis. We think this is a good idea, which is not a basis.

[00:27:33] But between Chevron and or Lupo Brita should say and corner post, all the government is asking is for all the court is asking is for government agencies to show their work, show your homework, show you have the authority,

[00:27:49] show you actually did the right policies, process and procedures because if not, you can't do it. And that's the way it should work. Well, that's a that is a huge change, huge change. And you have not we have not heard a lot about corner posts in the media.

[00:28:07] It's one of those sleeper decisions that most people aren't necessarily talking about right now. I can tell you everyone being the energy space, for example, on the left and on the right is very excited about that decision because if you are.

[00:28:26] A super green person and you don't like some of the EPA rules from the 80s, you can start a business and bring a suit against those rules.

[00:28:34] If you're somebody on the right or if you're somebody who is like drill baby drill and you don't like some of the decisions from the EPA in the 90s, you can now start a start a business and challenge those rules.

[00:28:47] But that's accountability and a government that has to prove that it has the authority is a government that's accountable to the people. And that's ultimately what we want because if these government agencies are acting outside their constitutional authority, then we need to hold them accountable.

[00:29:06] And that's what this is doing. If they are in the right, nothing will change. If they're in the wrong, well, then they have to go back to square one. Are there any more decisions we're waiting to hear on? So the court closed out.

[00:29:20] Now there are some other cases. So they just started granting cert for a bunch of cases. Now granting cert basically means the court says we will now begin, we will look at these cases coming up so everyone get excited.

[00:29:35] Get your amicus briefs ready and letting counsel know that the case will go up on appeal. But across the board, this has actually been a lot of people were like, oh, it's such a conservative court. There was a breakdown. A ton of these cases were 9-0.

[00:29:56] A bunch of these cases were 9-0 like NRA Veevolo, which was a case that actually found in favor of the NRA and it's whether the government can silence a trade association by asking banks to not do business with them.

[00:30:11] That was a 9-0 decision where Sotomayor writing the decision in favor of the NRA. The net choice cases, I mean, we had liberals, we had conservatives and we didn't have a single dissent in our decision.

[00:30:28] And so overwhelmingly, the decisions have not broken along the typical ideological lines and that's what you want.

[00:30:36] You want a simple rule of the road, a roadmap and we have that in the U.S. Constitution and all the court is doing is essentially returning us to the foundational rules on which everything else is built.

[00:30:51] Well, Carl, that is such a great overview for our listeners and so great to have you back on the podcast. We very much appreciate you coming by and educating us. And you can find Carl or more information if you check out NetChoice on the web.

[00:31:15] They are very well known in Washington circles. And Carl, we will have to have you back on if anything else comes up in the legal space as they say. But thank you very much to our listeners out there.

[00:31:31] We hope you had a great July 4 weekend and we will see you next week.