The Volokh Conspiracy

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President DeSantis's First Supreme Court Nominee

Episode 423 of the Cyberlaw Podcast


This episode features a much deeper, and more diverse, examination of the Fifth Circuit decision upholding Texas's social media law than we did last week. We devote the last half of this episode to a structured dialogue  between Adam Candeub and Alan Rozenshtein about the decision. Both have written about it, Alan critically and Adam supportively. I lead off, arguing that, contrary to legal Twitter's dismissive reaction, the opinion is a brilliant and effective piece of Supreme Court advocacy. Alan thinks that's exactly the problem; he objects to the opinion's grating self-certainty and refusal to acknowledge the less convenient parts of past case law. Adam is closer to my view. We all seem to agree that the opinion succeeds as an audition for Judge Oldham to become Justice Oldham in the DeSantis Administration.

We walk through the opinion and what its critics don't like, touching on the competing free expression interests of social media users and of the platforms themselves, whether there's any basis for an injunction today, given the relative weakness of the overbreadth argument, and whether "exercising editorial discretion" is a fundamental right under the first amendment or just an artifact of older technologies. Most intriguingly, we find unexpected consensus that Judge Oldham's (and Justice Thomas's) common carrier argument may turn out to be the most powerful argument in the case when it reaches the Court.

In the news roundup, we focus on the sprint to pass additional legislation before the end of the Congress. Michael Ellis explains the debate between the Cyberspace Solarium Commission alumni and business lobbyists over enacting a statutory set of obligations for systemically critical infrastructure companies.

Adam outlines a strange-bedfellows bill that has united Sens. Amy Klobuchar (D-Minn.) and Ted Cruz (R-Texas) in an effort to give small media companies and broadcasters an antitrust immunity to bargain with the big social media platforms over the use of their content. Adam is a skeptic, Alan less so.

The Pentagon, reliably braver when facing bullets than a bad Washington Post story, is performing to type in the flap over fake social media accounts. Michael tells us that the accounts pushed pro-U.S. stories but had met with little success before Meta and Twitter caught on and kicked them off their platforms. Now the Department of Defense is conducting a broad review of military information operations. I predict fewer such efforts and don't mourn their loss.

Adam and I touch on a decision of Meta's Oversight Board criticizing Facebook's automated image takedowns. I offer a new touchstone for understanding content regulation at the Big Platforms: They just don't care, so they've turned the whole effort over to second-rate AI and second-rate employees. There's a lot of explanatory power there.

Michael walks us through the Department of the Treasury's new flexibility on sending communications software and services to Iran.

And, in quick hits, I note that:

Download the 423rd Episode (mp3)

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