Latest / The Ben Ferguson Podcast / The Cloakroom Preview: Supreme Court Showdown Over Big Tech

Transcript

The Cloakroom Preview: Supreme Court Showdown Over Big Tech · The Ben Ferguson Podcast

• 0:00
  Speaker 1: Hi guys, Liz Wheeler. Here I have today for you
• 0:03
  Speaker 1: a preview of The cloak Room. The cloak Room is
• 0:06
  Speaker 1: the series I host with Senator Cruz on Verdict Plus.
• 0:09
  Speaker 1: We break down the nitty gritty legal aspect of some
• 0:13
  Speaker 1: of the political issues that surround us today. You can
• 0:15
  Speaker 1: join us at anytime at Verdict with Ted Cruz dot
• 0:18
  Speaker 1: com slash plus. That's Verdict with Ted Cruise dot com
• 0:22
  Speaker 1: slash plus. This episode today is one of my favorite ones.
• 0:26
  Speaker 1: So the Fifth Circuit Court of Appeals recently ruled against
• 0:30
  Speaker 1: big Tech. They said, the court said that big Tech
• 0:33
  Speaker 1: is not allowed to censor conservatives based on conservatives viewpoint.
• 0:37
  Speaker 1: This legal opinion is absolutely something. This is very possibly
• 0:41
  Speaker 1: could get in front of the Supreme Court and have
• 0:43
  Speaker 1: what might be the showdown of the century between the courts,
• 0:46
  Speaker 1: the Constitution, and big Tech. Senator Cruz breaks this all
• 0:50
  Speaker 1: down and answers the question, is this going to be
• 0:54
  Speaker 1: the end of big tech censorship of conservatives? I hope
• 0:58
  Speaker 1: you I hope you enjoy this episode. This episode of
• 1:01
  Speaker 1: Verdict with Ted Cruz is brought to you by Field
• 1:03
  Speaker 1: of Greens. Back in the day, people grew what they
• 1:07
  Speaker 1: ate fresh vegetables and fruits were the core of their diet.
• 1:10
  Speaker 1: It's what they ate. But as Americans became busier and busier,
• 1:13
  Speaker 1: now we eat pre made process fast food. You know,
• 1:16
  Speaker 1: the easy stuff, but not very healthy. Definitely not the
• 1:20
  Speaker 1: six cups of veggies and fruits a day. But let
• 1:22
  Speaker 1: me tell you about Field of Greens. Field of Greens
• 1:25
  Speaker 1: is packed with a full spectrum of essential vegetables and fruits,
• 1:28
  Speaker 1: plus science back herbs and prebiotics. This is what we
• 1:32
  Speaker 1: need to stay healthy. Field of Greens works fast, You'll
• 1:36
  Speaker 1: have more energy, you'll look and feel healthier, and it
• 1:39
  Speaker 1: can even help you lose weight. Next time you're at
• 1:41
  Speaker 1: the doctor and they compare your old lab work to
• 1:43
  Speaker 1: your new lab work, I bet the doctor will tell
• 1:45
  Speaker 1: you crushed it. Join me and take Field of Greens.
• 1:49
  Speaker 1: And to help you get started, I got you fifteen
• 1:51
  Speaker 1: percent off your first order and another ten percent off
• 1:54
  Speaker 1: when you subscribe for recurring orders. Visit Field of Greens
• 1:58
  Speaker 1: dot com and promo code cactus to collect this deal.
• 2:02
  Speaker 1: That's Field of Greens dot com promo code cactus. Field
• 2:07
  Speaker 1: of Greens dot com promo code cactus. Senator, we have
• 2:11
  Speaker 1: a great topic to talk about today. This made me
• 2:14
  Speaker 1: very excited to see out of your home state of Texas.
• 2:17
  Speaker 1: It's a potential Supreme Court showdown on big tech banning
• 2:21
  Speaker 1: conservatives over our viewpoints. We've all experienced this, anybody who
• 2:25
  Speaker 1: is conservative and outspoken. This is the ruling that came
• 2:29
  Speaker 1: out of the Fifth Circuit Court. I want to jump
• 2:31
  Speaker 1: right into the legal aspect of this. This is the
• 2:34
  Speaker 1: ruling from Judge Andrew Oldham. He says, a Texas statute
• 2:39
  Speaker 1: named House Bill twenty generally prohibits large social media platforms
• 2:43
  Speaker 1: from censoring speech based on the viewpoint of its speaker.
• 2:46
  Speaker 1: The platforms urge us to hold that the statute is
• 2:49
  Speaker 1: facially unconstitutional and hence cannot be applied to anyone, at
• 2:53
  Speaker 1: any time and under any circumstance. In urging such sweeping relief,
• 2:57
  Speaker 1: the platforms offer a rather odd inversion of the First Amendment.
• 3:00
  Speaker 1: That Amendment, of course, protects every person's right to the
• 3:03
  Speaker 1: freedom of speech, But the platforms argue that buried somewhere
• 3:08
  Speaker 1: in the person's enumerated right to free speech lies a
• 3:11
  Speaker 1: corporation's unenumerated right to muzzle speech. The implications of the
• 3:18
  Speaker 1: platform's arguments are staggering. On the platform's view, email providers,
• 3:22
  Speaker 1: mobile phone companies, and banks could cancel the accounts of
• 3:25
  Speaker 1: anyone who sends an email, makes a phone call, or
• 3:27
  Speaker 1: spends money in support of a disfavored political party, candidate
• 3:30
  Speaker 1: or business. What's worse, the platforms argue that a business
• 3:33
  Speaker 1: can acquire a dominant market position by holding itself out
• 3:38
  Speaker 1: as open to everyone, as Twitter did in championing itself
• 3:41
  Speaker 1: as the free speech wing of the Free Speech Party.
• 3:44
  Speaker 1: Then having cemented itself as the monopolist of the modern
• 3:48
  Speaker 1: public square, Twitter unapologetically argues that it could turn around
• 3:52
  Speaker 1: and ban all pro LGBT speech for no other reason
• 3:56
  Speaker 1: than its employees want to pick on members of that community. Today,
• 3:59
  Speaker 1: we reject the idea that corporations have a freewheeling First
• 4:03
  Speaker 1: Amendment right to censor what people say. Because the district
• 4:07
  Speaker 1: court held otherwise, We reverse its injunction and remand for
• 4:10
  Speaker 1: further proceedings. So this is an incredibly important decision. So
• 4:16
  Speaker 1: let's take it in several pieces. Number one, let me
• 4:19
  Speaker 1: commend the Texas State Legislature and Governor Abbot. The state
• 4:23
  Speaker 1: of Texas passed serious legislation designed to tackle and stop
• 4:28
  Speaker 1: big tech censorship. And Texas is leading, unfortunately in a
• 4:33
  Speaker 1: way that the federal government Joe Biden won't do, and
• 4:36
  Speaker 1: unfortunately in a way that Congress won't do. I've been
• 4:39
  Speaker 1: pushing for Congress to do something like this, but Democrats
• 4:42
  Speaker 1: are blocking it in DC. With Schumer and Pelosi running Congress,
• 4:46
  Speaker 1: they won't allow this to move forward. And so the
• 4:48
  Speaker 1: Texas state legislature said, to heck with you, We're gonna
• 4:51
  Speaker 1: do it. We're going to protect thirty million Texans, We're
• 4:53
  Speaker 1: going to protect free speech rights. And so it made
• 4:56
  Speaker 1: it illegal for the big tech companies to censor based
• 5:00
  Speaker 1: on viewpoint, based on politics, and it created an enforcement mechanism,
• 5:05
  Speaker 1: including the ability for the Attorney general to file an
• 5:09
  Speaker 1: injunctive lawsuit against big tech to force them to stop censoring. Now,
• 5:14
  Speaker 1: what happened is Big Tech, which which has more money
• 5:18
  Speaker 1: than Midas, it has unlimited cash. They print gold. What
• 5:23
  Speaker 1: did they do? They hired an army of lawyers and
• 5:26
  Speaker 1: filed a lawsuits seeking to stop the bill, and they succeeded.
• 5:30
  Speaker 1: They got a district court to agree with them. This
• 5:34
  Speaker 1: is the appeal from that injunction. And this opinion is masterful.
• 5:43
  Speaker 1: This is a very very serious judicial opinion. Let me
• 5:47
  Speaker 1: stop for a second and give give a little bit
• 5:50
  Speaker 1: of color, And let me give you a little bit
• 5:51
  Speaker 1: of color on a couple of sides. Number one. The
• 5:54
  Speaker 1: judge who wrote it as a judge named Judge Andy Oldham.
• 5:57
  Speaker 1: I've known Andy for some time. Andy was a law
• 6:01
  Speaker 1: clerk to Judge David Sentel on the DC Circuit, who
• 6:04
  Speaker 1: was one of the top conservative appellate judges in the country.
• 6:07
  Speaker 1: He was then a law clerk to Justice Sam Alito
• 6:10
  Speaker 1: on the US Supreme Court. Andy is a veteran litigator,
• 6:16
  Speaker 1: and in fact he was in my old office. As
• 6:18
  Speaker 1: you know I was for five and a half years,
• 6:20
  Speaker 1: was the Solicitor General of Texas. Well. Andy was in
• 6:24
  Speaker 1: that office after I left. He didn't work for me,
• 6:27
  Speaker 1: but he was Deputy Solicitor General of Texas and did
• 6:31
  Speaker 1: an excellent job. And in fact, after being Deputy SG,
• 6:34
  Speaker 1: he went on to be General Counsel in the Governor's
• 6:38
  Speaker 1: Office for Greg Abbott. And so when Donald Trump was president,
• 6:42
  Speaker 1: there were multiple vacancies on the Fifth Circuit. And the
• 6:47
  Speaker 1: way it works with judicial appointments is that every federal
• 6:50
  Speaker 1: judicial appointment in the state of Texas has to get
• 6:54
  Speaker 1: my sign off and has to get the sign off
• 6:56
  Speaker 1: of John Cornen, and the two of us have a
• 6:57
  Speaker 1: very serious and thorough vetting process. In fact, we have
• 7:01
  Speaker 1: a bipartisan Judicial Evaluation Committee that plays an important role
• 7:05
  Speaker 1: in it. But Andy is someone who I enthusiastically supported
• 7:11
  Speaker 1: President Trump nominating Cordon and I both recommended to President
• 7:17
  Speaker 1: Trump that he nominated him. And for that matter, Greg Abbott,
• 7:20
  Speaker 1: my old bosson good friend, was effusive. Abbott called me
• 7:24
  Speaker 1: and said, this guy is a rock star. You want
• 7:26
  Speaker 1: him on the Court of Appeals. President Trump nominated him,
• 7:29
  Speaker 1: We confirmed him, and I got to say, look no
• 7:33
  Speaker 1: further than this opinion to have confirmation as to why
• 7:36
  Speaker 1: that was an incredibly important decision. This opinion, it's over
• 7:42
  Speaker 1: one hundred pages long. It is careful, it is thorough,
• 7:47
  Speaker 1: it is scholarly another odd bit of commentary. When this
• 7:50
  Speaker 1: opinion came down, I really wanted to read it. It
• 7:54
  Speaker 1: was Sunday, Sunday afternoon, and I was home in Houston
• 8:00
  Speaker 1: and had taken no I'm sorry with Saturday afternoon. It
• 8:05
  Speaker 1: was Saturday afternoon. I was home in Houston, and I
• 8:07
  Speaker 1: had taken my daughter Katherine, who's eleven, and one of
• 8:11
  Speaker 1: her friends to the nail salon to get a manny petty.
• 8:16
  Speaker 1: So they're both sitting there getting getting their toes done.
• 8:20
  Speaker 1: You know, Dad's a little kind of I'm not terribly
• 8:24
  Speaker 1: at ease in a nail salon with the whole manni
• 8:26
  Speaker 1: petty thing. And I gotta say, there there are lots
• 8:31
  Speaker 1: of like like women walking in who are doing double takes.
• 8:34
  Speaker 1: You know what on earth is cruise doing sitting in
• 8:37
  Speaker 1: the nail salon. And then like they said, hey, if
• 8:42
  Speaker 1: you want to sit with the girls while they're doing this,
• 8:44
  Speaker 1: you can. I'm like, yeah, sure, I'll go sit with them.
• 8:46
  Speaker 1: And so they had me seating seated in the chair
• 8:50
  Speaker 1: for the manny petty thing, which had a whole like
• 8:54
  Speaker 1: massage thing in the chair. So I did enjoy the
• 8:57
  Speaker 1: like back massage thing to turn on the auto massage.
• 9:00
  Speaker 1: But I'm sitting there. I was not getting the manny petty,
• 9:03
  Speaker 1: so I had my shoes on needless to sab next
• 9:06
  Speaker 1: to the girls. But I kept thinking, you know, someone
• 9:09
  Speaker 1: is going to video me in this manny petty thing
• 9:12
  Speaker 1: and it is going to drive Lefty Twitter insane. But
• 9:18
  Speaker 1: while I'm sitting there in the chair with my daughter
• 9:20
  Speaker 1: while she's having a blast. I'm reading this opinion onto
• 9:24
  Speaker 1: my iPhone, just sitting there like for a half hour,
• 9:28
  Speaker 1: just reading the opinion in the manny petty chair while
• 9:31
  Speaker 1: Catherine got her toes done. I was going to ask
• 9:33
  Speaker 1: you if you got a manny petty, but then I thought,
• 9:35
  Speaker 1: you know what, I would already know if he did,
• 9:37
  Speaker 1: because if someone was painting his fingernails, there would have
• 9:40
  Speaker 1: been a photo of that on Twitter already. So the
• 9:42
  Speaker 1: question was, moot, now that that is true. Nope, I
• 9:47
  Speaker 1: use clippers and do it myself. That that's sufficient. So
• 9:51
  Speaker 1: let's talk about the opinion. The opinion is really impressive.
• 9:57
  Speaker 1: It goes so one of the things to understand, this
• 10:00
  Speaker 1: law has not gone into effect in Texas yet. So
• 10:03
  Speaker 1: there are two ways generally to challenge a law as unconstitutional.
• 10:10
  Speaker 1: One way and the way typically a law is challenge
• 10:13
  Speaker 1: is unconstitutional is what's known as as applied, which is
• 10:17
  Speaker 1: a laws and effect, and the government comes and tries
• 10:21
  Speaker 1: to enforce it against you in some specific context, and
• 10:24
  Speaker 1: you go file a lawsuit and say, enforcing this law
• 10:27
  Speaker 1: against me as applied under these facts right here and
• 10:31
  Speaker 1: now is unconstitutional. That's the way the vast majority of
• 10:35
  Speaker 1: lawsuits about constitutionality are adjudicated, and we talked about that
• 10:41
  Speaker 1: distinction in our last episode. But the other way to
• 10:45
  Speaker 1: challenge it is what was happening here, and it's what's
• 10:49
  Speaker 1: called a facial challenge, and it's a challenge that is
• 10:54
  Speaker 1: often and in this case, it was brought before the
• 10:58
  Speaker 1: law even goes into effect, and a facial challenge, it's
• 11:02
  Speaker 1: a much harder thing to prevail on. A facial challenge
• 11:04
  Speaker 1: is saying there is no circumstance in which this law
• 11:08
  Speaker 1: can be applied unconstitutionally. It is on its face unconstitutional.
• 11:13
  Speaker 1: Doesn't matter how it's applied, this law cannot stand. The
• 11:18
  Speaker 1: most frequent area where a facial challenge is allowed is
• 11:23
  Speaker 1: in the First Amendment context. And there's a doctrine called
• 11:26
  Speaker 1: First Amendment over breadth, which is that it it will
• 11:30
  Speaker 1: chill speech, it will it will have such a chilling
• 11:33
  Speaker 1: and deterrent effect that people will refrain from speaking. So
• 11:38
  Speaker 1: this was a facial challenge and overbreadth challenge under the
• 11:42
  Speaker 1: First Amendment. And by the way, Big Tech had lots
• 11:47
  Speaker 1: of high priced lawyers who made lots of vigorous arguments
• 11:51
  Speaker 1: about this. What the Fifth Circuit opinion that judge Oldham wrote,
• 11:56
  Speaker 1: does is goes systematically through and says number one, look,
• 12:00
  Speaker 1: this doesn't chill This law going into effect doesn't chill
• 12:04
  Speaker 1: any speech. And in fact, big Tech is not asking
• 12:08
  Speaker 1: for a right to speak, they're asking for a right
• 12:10
  Speaker 1: to censor. Nobody is stopping Big Tech from saying whatever
• 12:15
  Speaker 1: it wants. What this law is saying is that big
• 12:19
  Speaker 1: Tech cannot silence other speakers. And so it goes through
• 12:23
  Speaker 1: systematically and says, well, is there a right to censor
• 12:27
  Speaker 1: that is separate from the right to speak? And one
• 12:30
  Speaker 1: of the arguments big Tech says, as they said, well,
• 12:33
  Speaker 1: we're a publisher and we're engaged in editorial decisions about
• 12:37
  Speaker 1: what to allow other speakers to say and not say.
• 12:40
  Speaker 1: And there is a whole line of cases where, for example,
• 12:43
  Speaker 1: newspapers can choose what op eds to run and what
• 12:47
  Speaker 1: op eds not to run. But what the opinion does
• 12:51
  Speaker 1: through systematically and distinguishes and says, well, that's not what
• 12:54
  Speaker 1: big tech is doing. They're not holding themselves out as
• 12:56
  Speaker 1: a publisher and saying we're choosing, We're only running the
• 12:59
  Speaker 1: speech we say. And in fact, Big Tech routinely represents
• 13:03
  Speaker 1: to Congress, to its consumers, to everybody else that they're
• 13:07
  Speaker 1: an open marketplace of ideas and they're not responsible for
• 13:10
  Speaker 1: the content of what they say. And in fact, Congress,
• 13:14
  Speaker 1: in section two thirty the Communications Decency Act explicitly said
• 13:17
  Speaker 1: Big Tech is not a publisher and they're not responsible
• 13:19
  Speaker 1: for the content of what people say, which the Fifth
• 13:24
  Speaker 1: Circuit reasonably interpreted say, well, they can't claim to be
• 13:27
  Speaker 1: a publisher and claim not to be simultaneously pick one
• 13:30
  Speaker 1: or the other, don't. You don't get to have your
• 13:31
  Speaker 1: cake and eat it too. There's something else text legislature did,
• 13:36
  Speaker 1: which is it regulated them as as what's called a
• 13:40
  Speaker 1: common carrier. Now what is a common carrier? And the
• 13:44
  Speaker 1: opinion does a very good job of going through the
• 13:46
  Speaker 1: history of this common carriers. Initially they came up with
• 13:48
  Speaker 1: in the transportation context, people who ran, say a ferry
• 13:53
  Speaker 1: boat across a let's say a river or a lake.
• 13:59
  Speaker 1: And early, early on, there was legislation common carrier legislation
• 14:03
  Speaker 1: that was understood as being permissible that said, if you're
• 14:07
  Speaker 1: running a ferry boat, you can't just arbitrarily decide Liz,
• 14:12
  Speaker 1: I don't like you, so you can't cross the river.
• 14:15
  Speaker 1: That if you hold yourself out to the public as
• 14:17
  Speaker 1: a common carrier, meaning I carry the public, then you
• 14:22
  Speaker 1: can't discriminate against and say I'll only carry you but
• 14:25
  Speaker 1: not you. That doctrine has been around for hundreds of years.
• 14:31
  Speaker 1: It's also been applied very specifically in terms of communication.
• 14:36
  Speaker 1: And again the opinion goes through the history of it.
• 14:38
  Speaker 1: It was first applied with the telegram, where you had
• 14:41
  Speaker 1: telegram lines, and it used to be the telegrams did
• 14:44
  Speaker 1: discriminate against speech, and so, for example, the telegraph companies
• 14:48
  Speaker 1: were owned by partisans, and so they would suppress, for example,
• 14:53
  Speaker 1: election information that was contrary to their partisan leanings. They
• 14:57
  Speaker 1: wouldn't transmit a telegram that say, hey, hypothetically the Democrat
• 15:02
  Speaker 1: one here, or the Democrats winning here, or the Republicans
• 15:04
  Speaker 1: one here is winning there. They would suppress that speech
• 15:07
  Speaker 1: because they disagreed with the politics of it. And Congress
• 15:09
  Speaker 1: came in and regulated it and said, look, if someone
• 15:12
  Speaker 1: sayds a telegram, you got to send the damn thing.
• 15:14
  Speaker 1: Whether you agree with it or not. You're a common
• 15:16
  Speaker 1: carrier carry the message. All of this the Fifth Circuit
• 15:20
  Speaker 1: walked painstakingly through and said, listen, big tech today they
• 15:25
  Speaker 1: are monopolists, they are much they are common carriers. That's
• 15:28
  Speaker 1: how the state regulated them, and you can provide an
• 15:33
  Speaker 1: equal access rule. This opinion, it will be challenged, It
• 15:39
  Speaker 1: could easily go to the Supreme Court. But I got
• 15:41
  Speaker 1: to say reading this opinion, I would encourage you know,
• 15:45
  Speaker 1: we did this before on Dobbs. Dobbs was another very
• 15:48
  Speaker 1: very serious opinion by Justice Alito. I would encourage people
• 15:52
  Speaker 1: to read this opinion. It is fascinating and exceptionally well done.
• 15:56
  Speaker 1: Some of the industries that have been regulated as common carriers,
• 16:00
  Speaker 1: that's happened via Congress, meaning our federal Congress. Yea, this
• 16:04
  Speaker 1: happened via the state of Texas. Will that become an
• 16:08
  Speaker 1: issue in any way that it was done by the
• 16:09
  Speaker 1: state and not the federal Congress? So I don't think so.
• 16:15
  Speaker 1: It is true that the common carrier legislation, by and large,
• 16:19
  Speaker 1: a lot of it, certainly dealing with for example, telecom
• 16:22
  Speaker 1: or railroads, is at the federal level. But the question
• 16:27
  Speaker 1: is whether it's permissible under the First Amendment. And the
• 16:30
  Speaker 1: First Amendment analysis is not different whether it's Congress regulating
• 16:35
  Speaker 1: or the state regulating. So we've talked before on Cloakroom
• 16:38
  Speaker 1: about how the Supreme Court has incorporated the First Amendment
• 16:43
  Speaker 1: against the states. So the First Amendment by its own
• 16:45
  Speaker 1: explicit text only applies to Congress. Congress shall make no
• 16:48
  Speaker 1: laws how it begins. But the Supreme Court has interpreted
• 16:52
  Speaker 1: the free speech protections exactly the same against state and
• 16:56
  Speaker 1: local government. So if it is unconstant and the First
• 17:00
  Speaker 1: Amendment for Congress to pass a law restricting speech, it's
• 17:04
  Speaker 1: equally unconstitutional for the state to do that. In this instance,
• 17:11
  Speaker 1: if it would be constitutional for Congress to regulate Big
• 17:15
  Speaker 1: Tech as a common carrier and put the same obligations
• 17:18
  Speaker 1: of nondiscrimination that they put on telephone companies or telegraph companies,
• 17:24
  Speaker 1: then it's equally constitutional for the states to do it.
• 17:26
  Speaker 1: That the First Amendment doesn't apply differently, and so the
• 17:30
  Speaker 1: principle is the same. And so I don't think that. Look,
• 17:35
  Speaker 1: could Big Tech try to come up with some argument
• 17:37
  Speaker 1: on that, I suppose, but I can't think of a
• 17:40
  Speaker 1: good one sitting here. What is Big Tech's appeal going
• 17:44
  Speaker 1: to be based on? What's their argument against this ruling
• 17:50
  Speaker 1: that it violates the First Amendment. That they are publishers
• 17:53
  Speaker 1: and they are choosing what speech to transmit and what
• 17:57
  Speaker 1: speech not and so for example, there was a case
• 18:01
  Speaker 1: that the Supreme Court considered a law at a Florida
• 18:04
  Speaker 1: that said if a newspaper wrote published an editorial that
• 18:09
  Speaker 1: was critical of a political candidate, that that candidate had
• 18:14
  Speaker 1: a right to respond in equal space. And the Supreme
• 18:18
  Speaker 1: Court said, you can't do that, that that's unconstitutional, that
• 18:21
  Speaker 1: the paper is exercising its First Amendment rights deciding what
• 18:26
  Speaker 1: editorials to publish. And it also talked about in the
• 18:30
  Speaker 1: world of over breadth that there was a chilling effect
• 18:33
  Speaker 1: on that that what it could do is discourage papers
• 18:37
  Speaker 1: from talking about politics altogether. Because look, space in a
• 18:41
  Speaker 1: newspaper cost money, and there's a finite amount of space.
• 18:46
  Speaker 1: And so if a newspaper knows if we write about politics,
• 18:50
  Speaker 1: we got to give equal space to the other side.
• 18:52
  Speaker 1: That's given away free newspaper, that costs us revenue. And
• 18:56
  Speaker 1: a rational thing for a newspaper to do is let's
• 18:58
  Speaker 1: just not talk about it all together. In the Supreme
• 19:00
  Speaker 1: Court said, well, that's chilling speech, that's discouraging speech. One
• 19:05
  Speaker 1: of the things that Fist Circuit's decision says here is, look,
• 19:10
  Speaker 1: big tech is very different from a newspaper. There's not
• 19:13
  Speaker 1: a finite number of tweets. It's not like allowing someone
• 19:19
  Speaker 1: to tweet something they disagree takes away with some other
• 19:22
  Speaker 1: tweet they want that it is essentially infinite, and Big
• 19:29
  Speaker 1: Tech is not purporting. They don't claim to be endorsing
• 19:34
  Speaker 1: what's said on their platform. They don't claim to be
• 19:38
  Speaker 1: doing what an editorial page does. They claim to be
• 19:41
  Speaker 1: the public square. The whole predicative section two thirty is
• 19:45
  Speaker 1: it's not our fault. It's not us speaking as somebody
• 19:47
  Speaker 1: else speaking. And I thought that was one of the
• 19:50
  Speaker 1: more insightful and clever aspects of the opinion was taking
• 19:57
  Speaker 1: the premises behind section two dirty and essentially flipping them
• 20:04
  Speaker 1: against Big Tech and saying, look, you guys have argued
• 20:08
  Speaker 1: very persuasively, you're not publishers. Okay, you're not publishers. Well,
• 20:11
  Speaker 1: then don't pretend to be publishers. You are a common carrier.
• 20:15
  Speaker 1: You're just a vehicle. AT and T is not a publisher.
• 20:19
  Speaker 1: If I call and tell you something, at and T
• 20:22
  Speaker 1: is not responsible for what I said to you, the
• 20:24
  Speaker 1: same thing if I tweet something at you a common carrier. Likewise,
• 20:28
  Speaker 1: it's not their fault. And one of the things they
• 20:30
  Speaker 1: can point out they said, you know what, if Big
• 20:34
  Speaker 1: Tech disagrees, they can say so so if I tweet
• 20:41
  Speaker 1: something that they don't like, if I tweet there is
• 20:45
  Speaker 1: a difference between boys and girls. Big Tech disagrees with that.
• 20:52
  Speaker 1: The circuit said, you know what, nothing stop and Twitter
• 20:55
  Speaker 1: from attaching appending to my tweet. This is a horrible, hate, full,
• 21:00
  Speaker 1: transphobic statement that we cannot stand and we disagree, and
• 21:04
  Speaker 1: we think boys and girls are exactly the same, and
• 21:07
  Speaker 1: no one could possibly think to the country. Then you
• 21:09
  Speaker 1: say that nobody's stopping them from speaking. And by the
• 21:14
  Speaker 1: way they do that, they're now like flagging things they
• 21:19
  Speaker 1: disagree with, usually anything right of center. As you know,
• 21:22
  Speaker 1: you know this is dubious, this is false, so they're
• 21:25
  Speaker 1: doing it right now. Fifth Circus says, well, gosh, if
• 21:29
  Speaker 1: you want to speak, you can, But you're not claiming
• 21:32
  Speaker 1: a right to speak. You're claiming a right to censor.
• 21:34
  Speaker 1: You're claiming a right to silence another voice that you
• 21:37
  Speaker 1: don't like. That's altogether different. That's a really important distinction.
• 21:42
  Speaker 1: I think Big Tech is definitely trying to have their
• 21:45
  Speaker 1: cake and eat it too, So they argue we are
• 21:49
  Speaker 1: not a publisher for purposes of liability law. For purposes
• 21:53
  Speaker 1: of defamation for purposes of Section two thirty. But we
• 21:57
  Speaker 1: are a publisher for purposes of the First Amendment. So
• 22:00
  Speaker 1: they're arguing it's different sources of law. It's still pretty
• 22:05
  Speaker 1: damn inconsistent, and I think this opinion quite rightly points
• 22:10
  Speaker 1: out the incoherence of you either are y art, and
• 22:15
  Speaker 1: I think it does so very effectively. The question then,
• 22:18
  Speaker 1: is is this going to reach the Supreme Court and
• 22:20
  Speaker 1: how is this court going to rule on it? If so,
• 22:24
  Speaker 1: I think it's quite likely to reach the Supreme Court.
• 22:27
  Speaker 1: This is a major, major constitutional issue. There's an enormous
• 22:33
  Speaker 1: amount of money behind these lawsuits. It is a law
• 22:36
  Speaker 1: that affects directly thirty million Americans, thirty million residents of Texas,
• 22:45
  Speaker 1: you know, just under ten percent of the US population.
• 22:48
  Speaker 1: It is a law that will have dramatic impact on
• 22:51
  Speaker 1: big tech nationally. If they're not allowed to discriminate in Texas,
• 22:57
  Speaker 1: it could well force them to change how they behave
• 22:59
  Speaker 1: to people all over the country. So I think it's
• 23:04
  Speaker 1: quite likely the Court takes this case. It's not a certainty,
• 23:09
  Speaker 1: but if I were a betting man, and I'm abetting man,
• 23:12
  Speaker 1: I would bet yes that they would take the case.
• 23:15
  Speaker 1: And I'm you know, the Court had stepped in before
• 23:23
  Speaker 1: and disagreed with the Fifth Circuit on staying the application
• 23:28
  Speaker 1: of the District Court's injunction. That was at a preliminary stage.
• 23:33
  Speaker 1: And we've talked before about how a number of the
• 23:36
  Speaker 1: justices and the Court are minimalists and incrementalists. That prior decision,
• 23:42
  Speaker 1: I don't think it at all foreshadows where this decision
• 23:46
  Speaker 1: on the merits goes. This is now a major, serious
• 23:50
  Speaker 1: decision on the merits of the overbreadth challenge. I like
• 23:57
  Speaker 1: the chances of five or even six justices at the
• 24:02
  Speaker 1: Court agreeing with the Fifth Circuit on this case. Oh,
• 24:10
  Speaker 1: I can't wait. I can't wait to see how this unfolds.
• 24:12
  Speaker 1: I hope that that is correct. Five or six justices.
• 24:15
  Speaker 1: That's a pretty hefty majority right there. Okay, I do
• 24:19
  Speaker 1: want to go over to mailbag for a second, and
• 24:21
  Speaker 1: I want to ask this is a very culturally hot topic.
• 24:25
  Speaker 1: Chrissy Tegan, who is the white She's a mega celebrity,
• 24:28
  Speaker 1: the wife of John Legend. I'm sure you're familiar with her.
• 24:30
  Speaker 1: She tragically lost her son halfway through her pregnancy two
• 24:33
  Speaker 1: years ago. She had a placental abruption. Essentially, she was
• 24:36
  Speaker 1: bleeding out. They had to induce her labor. He wasn't
• 24:39
  Speaker 1: yet viable. She miscarriage. She publicly posted the pictures. They
• 24:43
  Speaker 1: were heartbreaking pictures. Fast forward two years to right now,
• 24:47
  Speaker 1: Chrissy Tegan announces that she recently realized that her miscarriage
• 24:53
  Speaker 1: of two years ago was actually an abortion. She said
• 24:57
  Speaker 1: she realized this in the wake of Dobbs versus Jack
• 25:00
  Speaker 1: in Women's Health, which overturned Roe v. Wade. Do you
• 25:03
  Speaker 1: have a response to Chrissie Tigan, If there's a medical
• 25:07
  Speaker 1: procedure in that context, it's not an abortion, and it
• 25:11
  Speaker 1: is the law in all fifty states, that it should
• 25:13
  Speaker 1: be the law in all fifty states, that that that
• 25:16
  Speaker 1: doctors can intervene to save the life of the mother,
• 25:18
  Speaker 1: even if it means tragically losing the child, That that
• 25:22
  Speaker 1: that there is nobody, even the most robust pro life advocates,
• 25:28
  Speaker 1: nobody argues that that that when the woman's life is
• 25:31
  Speaker 1: in danger, that that you can't take extraordinary medical steps
• 25:35
  Speaker 1: to preserve the mother's life. And and so in those circumstances,
• 25:40
  Speaker 1: um she may want to characterize it as as abortion.
• 25:47
  Speaker 1: In this political context, but she described it at the
• 25:52
  Speaker 1: time as as as a miscarriage, and it certainly sounds
• 25:56
  Speaker 1: like that was an accurate description. Seems to me, she
• 26:00
  Speaker 1: described it in quite some detail, very tragic, every parent's
• 26:03
  Speaker 1: worst nightmare. But to now characterize it as an abortion
• 26:07
  Speaker 1: for politics also seems to add to that tragedy. Senator,
• 26:11
  Speaker 1: thank you for this legal analysis on the Fifth Circuit
• 26:15
  Speaker 1: Court ruling on Texas hr or House Built twenty. This
• 26:19
  Speaker 1: is the kind of legal stuff that I like the
• 26:23
  Speaker 1: best when we do on the Cloakroom. It's what it's
• 26:25
  Speaker 1: diving into these issues, not just on a tweet form,
• 26:27
  Speaker 1: not just in an op ed, but really getting into
• 26:30
  Speaker 1: the background of what underpins this big fight. Big tech
• 26:33
  Speaker 1: is one of the big fights of our time, and
• 26:35
  Speaker 1: it's gonna be really fun see how this plays out.
• 26:37
  Speaker 1: So it was good, It was good sitting here with
• 26:39
  Speaker 1: you tonight. I'm Liz Wheeler. This is the Cloakroom on
• 26:42
  Speaker 1: Verdict Plus