In New Supreme Court Social Media Case, Echoes of Citizens United on “AntiDistortion” and the Foreign Campaign Spending Ban, with Implications for Shutting Down Tik-Tok

campaign finance, social media and social protests, Supreme Court

I want to pick up a point first flagged yesterday by Eugene Volokh from yesterday’s decision in Moody v. NetChoice that could have relevance to new legislation, currently being challenged in court, that could ban Tik-Tok as being foreign owned. Some lines in Justice Barrett’s concurrence makes it more likely the Court would uphold a Tik-Tok ban, if the issue makes it to the Supreme Court.

I need to give a bit of wonky background to set the stage (and I’m writing about this more extensively in a larger piece that will post in a few weeks).

The Supreme Court has long rejected the idea in the campaign finance context that one could limit the speech of some to enhance the relative voice of others. The Court made such a statement first in the 1976 case, Buckley v. Valeo, and it played a major role in the Supreme Court’s 2010 Citizens United case. The idea of equalizing campaign spending to prevent distortion of the political marketplace became known as the “antidistortion” rationale, and it figured heavily in the 1990 Austin v. Michigan Chamber of Commerce case upholding a requirement that corporations use PACs for their political spending and not their general treasury funds. Citizens United emphatically rejected this antidistortion rationale, overturning Austin. It held corporations have a First Amendment right to spend unlimited sums independently to support or oppose candidates for office.

In part of his dissent in Citizens United, Justice Stevens raised the issue of spending by foreign individuals, governments, and entities. Federal law bars such spending, but Stevens suggested Citizens United raised the question whether such a ban by foreign corporations violated the First Amendment too. Justice Kennedy’s majority opinion in Citizens United explicitly said it was not reaching the issue.

Just a year later, a three judge court, in an opinion in Bluman v. FEC by then-judge Brett Kavanaugh upheld the foreign spending ban, saying it was justified by the government’s compelling interest in “democratic self-government.” The Supreme Court summarily affirmed, without any opinion and with no dissents. I’ve long criticized the Supreme Court for not explaining how the corporate ban could be forbidden but the foreign spending ban is just fine.

Fast forward to yesterday’s Moody decision. There was this particularly notable line from Justice Kagan’s majority opinion (who as solicitor general argued Citizens United on behalf of the government, but did not endorse the antidistortion rationale), citing Buckley, affirming the rejection of the antidistortion rationale:

But a State may not interfere with private actors’ speech to advance its own vision of ideological balance. States (and their citizens) are of course right to want an expressive realm in which the public has access to a wide range of views. That is, indeed, a fundamental aim of the First Amendment. But the way the First Amendment achieves that goal is by preventing the government from “tilt[ing] public debate in a preferred direction.” Sorrell v. IMS Health Inc., 564 U.S. 552, 578–579, 131 S.Ct. 2653, 180 L.Ed.2d 544 (2011). It is not by licensing the government to stop private actors from speaking as they wish and preferring some views over others. And that is so even when those actors possess “enviable vehicle[s]” for expression. Hurley, 515 U.S. at 577, 115 S.Ct. 2338. In a better world, there would be fewer inequities in speech opportunities; and the government can take many steps to bring that world closer. But it cannot prohibit speech to improve or better balance the speech market. On the spectrum of dangers to free expression, there are few greater than allowing the government to change the speech of private actors in order to achieve its own conception of speech nirvana. That is why we have said in so many contexts that the government may not “restrict the speech of some elements of our society in order to enhance the relative voice of others.” Buckley v. Valeo, 424 U.S. 1, 48–49, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam). That unadorned interest is not “unrelated to the suppression of free expression,” and the government may not pursue it consistent with the First Amendment.

Justice Amy Coney Barrett joined the majority opinion that opined on how a state ban on content moderation applied to social media platforms likely violated the First Amendment. But she added some caveats and issues for future cases, including this observation, citing Citizens United:

There can be other complexities too. For example, the corporate structure and ownership of some platforms may be relevant to the constitutional analysis. A speaker’s right to “decide ‘what not to say’ ” is “enjoyed by business corporations generally.” Hurley, 515 U.S. at 573–574, 115 S.Ct. 2338 (quoting Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal., 475 U.S. 1, 16, 106 S.Ct. 903, 89 L.Ed.2d 1 (1986)). Corporations, which are composed of human beings with First Amendment rights, possess First Amendment rights themselves. See Citizens United v. Federal Election Comm’n, 558 U.S. 310, 365, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010); cf. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 706–707, 134 S.Ct. 2751, 189 L.Ed.2d 675 (2014). But foreign persons and corporations located abroad do not. Agency for Int’l Development v. Alliance for Open Society Int’l, Inc., 591 U.S. 430, 433–436, 140 S.Ct. 2082, 207 L.Ed.2d 654 (2020). So a social-media platform’s foreign ownership and control over its content-moderation decisions might affect whether laws overriding those decisions trigger First Amendment scrutiny. What if the platform’s corporate leadership abroad makes the policy decisions about the viewpoints and content the platform will disseminate? Would it matter that the corporation employs Americans to develop and implement content-moderation algorithms if they do so at the direction of foreign executives? Courts may need to confront such questions when applying the First Amendment to certain platforms.

So we see here the same parallel move as in Citizens United. Reject the antidistortion rationale applied to corporations, but note that the rules might be different for foreign corporations, and limits on certain foreign corporations may not violate the First Amendment as they would for domestic corporations.

Surely this will play a role in the Tik-Tok litigation.

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Presidential Immunity and Partisan Primaries

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New Common Ground Democracy essay on yesterday’s SCOTUS decision, with this subtitle: “The effort to prosecute Trump criminally is a consequence of the Senate’s failure to convict him in the impeachment case, and why did the Senate fail in this? The fear of being primaried.”

It begins: “You might think that the Supreme Court’s presidential immunity decision has little or nothing to do with the need to eliminate partisan primaries in congressional elections, but in fact they are very much related.”

The essay relies heavily on the important point about incentives that Kevin Kosar made in last week’s webinar. This incentives point is yet another key reason why in this “hair on fire” moment there is even greater need to eliminate partisan primaries.

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The Supreme Court’s Irresponsible Murkiness Over Whether the President Could Remove His Attorney General by Poisoning Him in the New Trump Immunity Case

authoritarian threats in US

Under the Supreme Court’s ruling in yesterday’s Trump v. United States case, does an official act clearly within the power of the president to undertake become an “unofficial act” not subject to immunity if the President uses what would be otherwise illegal means to carry it out? As Justice Jackson wrote in her dissent: “While the President may have the authority to decide to remove the Attorney General, for example, the question here is whether the President has the option to remove the Attorney General by, say, poisoning him to death.” Id. at n.5 (Jackson, J. dissenting). Surprisingly, the Court does not directly answer this question. Nor does the majority respond to this part of Justice Sotomayor’s dissent: “The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.”

The majority inexplicably does not respond to these points directly, leaving a huge hole in our understanding and a pathway to presidential abuse. The majority divided potential immunity claims into three buckets. For what the Court considered “core” presidential functions, including speaking with officials at the United States Department of Justice, absolute immunity is appropriate. For cases involving the use of presidential power up to the “outer perimeter” of presidential power, there is a presumption of absolute immunity. Under this presumption, “the President must . . . be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no dangers of intrusion on the authority and functions of the Executive Branch.” There is no immunity for unofficial acts.

The Court was not clear on whether using what would appear to be illegal means to commit an act that is clearly within the power of the President could count as unofficial and be prosecuted. It was only clear that in prosecuting an unofficial act, one could not rely on proof through official acts. It seems to me that a prohibition on using murder to remove a government official from office and criminal prosecution for that action would “pose no dangers of intrusion on the authority and functions of the executive branch.” But the Court should have been clear on this. And it would be odd to call that an “unofficial act.” Better to say it’s an official act committed by otherwise unlawful means that gets no immunity. That principle would cover the poisoning, Seal Team Six, and bribe for pardon cases.

This lack of clarity seems irresponsible and dangerous.

UPDATE: Some point me to footnote 3 of the majority’s opinion, which at least implicitly suggests (without saying how this could work) that the President could be prosecuted in a pardons for bribery scheme:

Justice BARRETT disagrees, arguing that in a bribery prosecution, for instance, excluding “any mention” of the official act associated with the bribe “would hamstring the prosecution.” Post, at –––– (opinion concurring in part); cf. post, at –––– – –––– (opinion of SOTOMAYOR, J.). But of course the prosecutor may point to the public record to show the fact that the President performed the official act. And the prosecutor may admit evidence of what the President allegedly demanded, received, accepted, or agreed to receive or accept in return for being influenced in the performance of the act. See 18 U.S.C. § 201(b)(2). What the prosecutor may not do, however, is admit testimony or private records of the President or his advisers probing the official act itself. Allowing that sort of evidence would invite the jury to inspect the President’s motivations for his official actions and to second-guess their propriety. As we have explained, such inspection would be “highly intrusive” and would “ ‘seriously cripple’ ” the President’s exercise of his official duties. Fitzgerald, 457 U.S., at 745, 756, 102 S.Ct. 2690 (quoting Spalding v. Vilas, 161 U.S. 483, 498, 16 S.Ct. 631, 40 L.Ed. 780 (1896)); see supra, at ––––. And such second-guessing would “threaten the independence or effectiveness of the Executive.” Trump v. Vance, 591 U.S. 786, 805, 140 S.Ct. 2412, 207 L.Ed.2d 907 (2020)

It’s a pretty thin reed to make the argument when the Court in stating its rules does not explicitly say that of course the President cannot poison his attorney general to remove him from office.

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“Ruling Further Slows Trump Election Case but Opens Door to Airing of Evidence”

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NYT:

The Supreme Court’s decision on Monday about executive immunity makes it all but certain that former President Donald J. Trump will not stand trial on charges of seeking to overturn the last election before voters decide whether to send him back to the White House in the next one.

But the ruling also opened the door for prosecutors to detail much of their evidence against Mr. Trump in front of a federal judge — and the public — at an expansive fact-finding hearing, perhaps before Election Day.

It remains unclear when the hearing, which was ordered as part of the court’s decision, might take place or how long it would last.

But it will address the big question that the justices kicked back to the trial court, which is how much of Mr. Trump’s indictment can survive the ruling that former presidents enjoy immunity for official actions they take in office. And it will be held in Federal District Court in Washington in front of the judge, Tanya S. Chutkan, who was handling the case before it was frozen more than six months ago as a series of courts considered his immunity claims.

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“Supreme Court’s Trump immunity ruling poses risk for democracy, experts say”

authoritarian threats in US, election subversion risk, Supreme Court

WaPo:

In its immunity decision Monday, the Supreme Court emphasized the long-cherished ideal that no one in America is above the law, not even the president.

The court’s dissenters and a chorus of critics said the majority had undercut that notion, elevating the president to a king who can easily avoid prosecution. They warned of future presidents unbound from the rule of law who could freely engage in criminal activity. And they pointed to the prospect of a second term for Donald Trump — the man whose indictment on charges related to his efforts to overturn the 2020 election prompted the Supreme Court to weigh in — as a moment when their worst fears could be realized.

“If a future president sitting in the Oval Office were to want to commit crimes, up to and including subverting an election or remaining in power against the will of the American people, this opinion, in my mind, could provide a road map for that,” said David Becker, the executive director of the Center for Election Innovation and Research.

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“Cash Crunch Squeezes Kennedy Amid Costly Fight for Ballot Spots”

ballot access, campaign finance

NYT:

Robert F. Kennedy Jr.’s independent presidential campaign is spending heavily, amassing steep debts and resorting to layoffs as it becomes almost singularly focused on the costly effort of placing his name on state ballots.

The troubles, laid bare in federal filings and interviews with nine people with knowledge of the campaign’s activities, have left little money for events and other traditional campaign priorities, leading to a growing sense of alarm among some staff members and longtime supporters. Fund-raising has slowed, and the campaign has become reliant on Mr. Kennedy’s wealthy running mate, Nicole Shanahan, who last month put $2.5 million more into their campaign.

As the campaign struggles, allies of Mr. Kennedy have been quietly raising money into a new organization to support legal challenges to ballot access, according to records and interviews, effectively creating a separate financing operation.

‘The ballot litigation group — called the Ballot Freedom Fund and set up in May in Delaware by a lawyer with ties to Mr. Kennedy’s campaign — could ease the financial pressure on the campaign, which otherwise would have to foot legal bills itself. The group, a tax-exempt political organization, can raise unlimited amounts of money but is not allowed to coordinate with the campaign….’The ballot litigation group — called the Ballot Freedom Fund and set up in May in Delaware by a lawyer with ties to Mr. Kennedy’s campaign — could ease the financial pressure on the campaign, which otherwise would have to foot legal bills itself. The group, a tax-exempt political organization, can raise unlimited amounts of money but is not allowed to coordinate with the campaign….’The creation of the Ballot Freedom Fund is the latest example of a growing trend of federal campaigns offloading expenses to outside organizations — groups that can take checks of unlimited size but are legally barred from direct coordination with a campaign.

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My New Slate Piece on Today’s NetChoice Social Media Cases: “The First Amendment Just Dodged an Enormous Bullet at the Supreme Court”

First Amendment theory, social media and social protests, Supreme Court
I have written this piece for Slate. It begins: At Supreme Court oral argument in the Texas social media case back in February, Justice Samuel Alito asked the question: “Let’s say YouTube were a newspaper, how much would it weigh?”… Continue reading