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The 47 Morning Update with Ben Ferguson
The Cloakroom Preview: Supreme Court Showdown Over Big Tech
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- [00:00]
A
Hi guys. Liz Wheeler here. I have today for you a preview of the Cloakroom. The Cloakroom is the series I host with Senator Cruz on Verdict plus we break down the nitty gritty legal aspect of some of the political issues that surround us today. You can join us at any time at verdict with tedcruz.com/ that's verdict with tedcruz.com+. This episode today is one of my favorite ones. So the fifth Circuit Court of Appeals recently ruled against Big Tech. They said the court said that Big Tech is not allowed to censor conservatives based on conservatives viewpoint. This legal opinion is absolutely something. This is very possibly could get in front of the Supreme Court and have what might be the showdown of the century between the courts, the constitution and Big Tech. Senator Cruz breaks this all down and answers the question, is this going to be the end of Big Tech censorship of conservatives? I hope you I hope you enjoy this episode. This episode of Verdict with Ted Cruz is brought to you by Field of Greens. Back in the day, people grew what they ate. Fresh vegetables and fruits were the core of their diet. It's what they ate. But as Americans became busier and busier, now we eat pre made processed fast food. You know, the easy stuff but not very healthy. Definitely not the six cups of veggies and fruits a day. But let me tell you about Field of Greens. Field of Greens is packed with a full spectrum of essential vegetables and fruits plus science backed herbs and prebiotics. This is what we need to stay healthy. Field of Greens works fast. You'll have more energy, you'll look and feel healthier and it can even help you lose weight. Next time you're at the doctor and they compare your old lab work to your new lab work, I bet the doctor will tell you you crushed it. Join me and take Field of Greens. And to help you get started, I got you 15% off your first order and another 10% off when you subscribe. For recurring orders. Visit fieldofgreens.com and use promo code Cactus to collect this deal. That's fieldofgreens.com promo code cactus fieldofgreens.com promo Code cactus Senator, we have a great topic to talk about today. This made me very excited to see out of your home state of Texas. It's a potential Supreme Court showdown on Big Tech banning conservatives over our viewpoints. We've all experienced this. Anybody who is conservative and outspoken, this is the ruling that came out of the fifth Circuit Court. I want to jump right into the legal aspect of this. This is the Ruling from Judge Andrew Oldham. He says a Texas statute named House Bill 20 generally prohibits large social media platforms from censoring speech based on the viewpoint of its speaker. The platforms urge us to hold that the statute is facially unconstitutional and hence cannot be applied to anyone at any time and under any circumstance. In urging such sweeping relief, the platforms offer a rather odd inversion of the First Amendment. That amendment, of course, protects every person's right to the freedom of speech. But the platforms argue that buried somewhere in the person's enumerated right to free speech lies a corporation's unenumerated right to muzzle speech. The implications of the platform's arguments are staggering. On the platform's view, email providers, mobile phone companies, and banks could cancel the accounts of anyone who sends an email, makes a phone call, or spends money in support of a disfavored political party, candidate or business. What's worse, the platforms argue that a business can acquire a dominant market position by holding itself out as open to everyone as Twitter did in championing itself as the free Speech wing of the Free Speech Party. Then, having cemented itself as the monopolist of the modern public square, Twitter unapologetically argues that it could turn around and ban all pro LGBT speech for no other reason than its employees want to pick on members of that community. Today, we reject the idea that corporations have a freewheeling First Amendment right to censor what people say. Because the district court held otherwise, we reverse its injunction and remand for further proceedings.
- [04:12]
B
So this is an incredibly important decision. So let's take it in several pieces. Number one, let me commend the Texas state legislature and Governor Abbott. The state of Texas passed serious legislation designed to tackle and stop Big Tech censorship. And Texas is leading, unfortunately, in a way that the federal government, Joe Biden, won't do, and unfortunately in a way that Congress won't do. I've been pushing for Congress to do something like this, but Democrats are blocking it in D.C. with Schumer and Pelosi running Congress, they won't allow this to move forward. And so the Texas state legislature said, to heck with you. We're going to do it. We're going to protect 30 million Texans. We're going to protect free speech rights. And so it made it illegal for the big tech companies to censor based on viewpoint, based on politics. And it created an enforcement mechanism, including the ability for the attorney general to file an injunctive lawsuit against Big Tech to force them to stop censoring. Now, what happened is Big Tech, which. Which has more Money than, than Midas. It. It has unlimited cash. They print gold. What did they do? They, they hired an army of lawyers and filed a lawsuit seeking to stop the bill. And they succeeded. They got a district court to agree with them. This is the appeal from that injunction. And, and, and this opinion is masterful. This is a very, very serious judicial opinion. Let me stop for a second and give, give a little bit of color and let me give you a little bit of color on a couple of sides. Number one, the judge who wrote it is a judge named Judge Andy Oldham. I've known Andy for some time. Andy was a law clerk to Judge David Sentell on the D.C. circuit, who was one of the top conservative appellate judges in the country. He was then a law clerk to Justice Sam Alito on the US Supreme Court. Andy is a veteran litigator, and in fact, he was in my old office. As you know, I was from, for five and a half years, was the Solicitor General of Texas. Well, Andy was in that office after I left. He didn't work for me, but he was Deputy Solicitor General of Texas and did an excellent job. And in fact, after being Deputy sg, he went on to be general counsel in the governor's office for Greg Abbott. And so when Donald Trump was president, there were multiple vacancies on the Fifth Circuit. And the way it works with judicial appointments is that every federal judicial appoint in the state of Texas has to get my sign off and has to get the sign off of John Cornyn. And the two of us have a very serious and thorough vetting process. In fact, we have a bipartisan judicial evaluation committee that plays an important role in it. But Andy is someone who I enthusiastically supported President Trump nominating. Cornyn and I both recommended to President Trump that he nominate him. And for that matter, Greg Abbott, my old boss and good friend, was effusive. Abbott called me and said, this guy is a rock star. You want him on the Court of Appeals? President Trump nominated him. We confirmed him. And I gotta say, look no further than this opinion to have confirmation as to why that was an incredibly important decision. This opinion is over 100 pages long. It is careful, it is thorough, it is scholarly. Another odd bit of commentary. When this opinion came down, I really wanted to read it. It was Sunday, Sunday afternoon, and I was home in Houston and had taken. No, I'm sorry, it was Saturday afternoon. It was Saturday afternoon. I was home in Houston and I had taken my daughter Catherine, who's 11, and one of her friends to the nail salon to get a mani Pedi. So they're both sitting there getting, getting their toes done. You know, dad's a little kind of, I'm not terribly at ease in a nail salon with the whole mani petty thing. And I gotta say, there, there are lots of like, like women walking in who are doing double takes, you know, what on earth is Cruz doing sitting in the nail salon? And then, like, they said, hey, if you want to sit with the girls while they're doing this, you can. I'm like, yeah, sure, I'll go sit with them. And so they had me seating, seated in the chair for the mani pedi thing, which had a whole, like, massage thing in the chair. So I did enjoy the, like, back massage thing to turn on the auto massager. But I'm sitting there. I was not getting the mani pedi, so I had my shoes on. Needless to say, I'm next to the girls. But I kept thinking, you know, someone is going to video me in this mani petty thing, and it is going to drive lefty Twitter insane. But while I'm sitting there in the chair with my daughter, while she's having a blast, I'm reading this opinion on my iPhone, just sitting there, like, for a half hour, just reading the opinion in the mani pedi chair while Catherine got her toes done.
- [09:33]
A
I was gonna ask you if you got a mani pedi, but then I thought, you know what? I would already know if he did, because if someone was painting his fingernails, there would have been a photo of that on Twitter already. So the question was moot.
- [09:44]
B
No, that, that, that is true. Nope. I, I, I use clippers and do it myself. That, that, that's sufficient. So let's talk about the opinion. The opinion is really impressive. It, it goes. So one of the things to understand, this law has not gone into effect in Texas yet. So there are two ways challenge a law as unconstitutional. One way, and the way typically a law is challenged as unconstitutional is what's known as, as applied, which is a law is in effect, and the government comes and tries to enforce it against you in some specific context, and you go file a lawsuit and say, enforcing this law against me as applied under these facts right here and now is unconstitutional. That's the way the vast majority of lawsuits about constitutionality are adjudicated. And we talked about that distinction in our last episode. But the other way to challenge it is what was happening here. And it's what's called a facial challenge. And it's a challenge that is often, and in this case, it was brought before the Law even goes into effect. And a facial challenge, it's a much harder thing to prevail on. A facial challenge is saying there is no circumstance in which this law can be applied unconstitutionally. It is, on its face, unconstitutional. Doesn't matter how it's applied, this law cannot stand. The most frequent area where a facial challenge is allowed is in the first amendment context. And there's a doctrine called first amendment over breath, which is that it will chill speech. It will have such a chilling and deterrent effect that people will refrain from speaking. So this was a facial challenge, an over breath challenge under the first amendment. And by the way, Big tech had lots of high priced lawyers who made lots of vigorous arguments about this. What the fifth circuit opinion that Judge Oldham wrote does is goes systematically through and says, number one, look, this doesn't chill. This law going into effect doesn't chill any speech. And in fact, Big tech is not asking for a right to speak. They're asking for a right to censor. Nobody is stopping Big tech from saying whatever it wants. What this law is saying is, is, is that Big tech cannot silence other speakers. And so it goes through systematically and says, well, is there a right to censor that is separate from the right to speak? And, and one of the arguments Big tech says is they were a publisher and we're engaged in editorial decisions about what to allow other speakers to say and not say. And there is a whole line of cases where, for example, newspapers can choose what op EDS to run and what op EDS not to run. But what the opinion does is, goes through systematically and distinguishes it and says, well, that's not what big tech is doing. They're not holding themselves out as a publisher and saying, we're choosing, we're only running the speech. We say, and in fact, Big tech routinely represents to congress, to its consumers, to everybody else that they're an open marketplace of ideas and they're not responsible for the content of what they say. And in fact, Congress in Section 230 of the Communications decency act explicitly said big tech is not a publisher and they're not responsible for the content of what people say. Which the fifth circuit reasonably interpreted say, well, they can't claim to be a publisher and claim not to be simultaneously pick one or the other. You don't, you don't get to have your cake and eat it too. There's something else the Texas legislature did, which is it regulated them as what's called a common carrier. Now, what is a common carrier? And the opinion does a very good Job of going through the history of this common carriers. Initially they came up with in the transportation context, people who ran say a ferry boat across a, let's say a river or a lake. And early, early on there was legislation, common carrier legislation, that was understood as being permissible, that said if you're running a ferry boat, you can't just arbitrarily decide, Liz, I don't like you, so you can't cross the river that if you hold yourself out to the public as a common carrier, meaning I carry the public, then you can't discriminate against and say I'll only carry you, but not you. That doctrine has been around for hundreds of years. It's also been applied very specifically in terms of communication. And again the opinion goes through the history of it. It was first applied with the telegram where you had telegram lines. And it used to be the telegrams did discriminate against speech. And so for example, the telegraph companies were owned by partisans. And so they would suppress, for example, election information that was contrary to their partisan leanings. They wouldn't transmit a telegram that said, hey, hypothetically, the Democrat won here or the Democrats winning here or the Republicans won here is winning there. They would suppress that speech cuz they disagreed with the politics of it. And Congress came in and regulated it and said, look, if someone sends a telegram, you gotta send the damn thing whether you agree with it or not. You're a common carrier. Carry the message, all of this. The fifth Circuit walked painstakingly through and said, listen, Big Tech today, they are monopolists, they are much, they are common carriers. That's how the state regulated them. And you can provide an equal access rule. This opinion, it will be challenged. It could easily go to the Supreme Court. But I gotta say reading this opinion, I would encourage, you know, we did this before on Dobbs Dobbs was another very, very serious opinion by Justice Alito. I would encourage people to read this opinion. It is fascinating and exceptionally well done.
- [15:57]
A
Some of the industries that have been regulated as common carriers, that's happened via Congress, meaning our federal Congress. This happened via the state of Texas. Will that become an issue in any way that it was done by the state and not the federal Congress?
- [16:12]
B
So I don't think so. It is true that the common carrier legislation, by and large, a lot of it certainly dealing with for example television, telecom or railroads, is at the federal level. But the question is whether it's permissible under the First Amendment. And the First Amendment analysis is not different whether it's Congress regulating or the state regulating. So we've talked before on Cloakroom about how the Supreme Court has incorporated the First Amendment against the state. So the First Amendment by its own explicit text only applies to Congress. Congress shall make no law is how it begins. But the Supreme Court has interpreted the free speech protections exactly the same against state and local governments. So if it is unconstitutional under the First Amendment for Congress to pass a law restricting speech, it's equally unconstitutional for the state to do that in this instance. If it would be constitutional for Congress to regulate Big Tech as a common carrier and put the same obligations of non discrimination that they put on telephone companies or telegraph companies, then it's equally constitutional for the states to do it. That the First Amendment doesn't apply differently. And so the principle is the same. And so I don't think that. Look, could Big Tech try to come up with some argument on that? I suppose, but I can't think of a good one sitting here.
- [17:42]
A
What, what is Big Tech's appeal going to be based on? What's their argument against this ruling?
- [17:50]
B
That it violates the First Amendment, that they are publishers and they are choosing what speech to transmit and what speech not. And so, for example, there was a case that the Supreme Court considered a law out of Florida that said if a newspaper wrote, published an editorial that was critical of a political candidate, that that candidate had a right to respond in equal space. And the Supreme Court said you can't do that, that that's unconstitutional, that the paper is exercising its First Amendment rights, deciding what editorials to publish. And it also talked about in the world of over breath, that there was a chilling effect on that, that what it could do is discourage papers from talking about politics altogether. Because look, space in a newspaper costs money and there's a finite amount of space. And so if a newspaper knows, if we write about politics, we gotta give equal space to the other side. That's giving away free newspaper, that costs us revenue. And a rational thing for a newspaper to do is let's just not talk about it altogether. And the Supreme Court said, well, that's chilling speech, that's discouraging speech. One of the things the fifth Circuit's decision says here is, look, Big Tech is very different from a newspaper. There's not a finite number of tweets. It's not like allowing someone to tweet something they disagree takes away with some other tweet. They want that. It is essentially infinite. And Big Tech is not purporting, they don't claim to be endorsing what's said on their platform, they don't claim to be doing what an editorial page does. They claim to be the public square. The whole predicate of section 230 is it's not our fault. It's not not us speaking. It's somebody else speaking. And I thought that was one of the more insightful and clever aspects of the opinion was taking the premises behind section 230 and essentially flipping them against Big Tech and saying, look, you guys have argued very persuasively, you're not publishers, okay? You're not publishers. Well, then don't pretend to be publishers. You are a common carrier. You're just a vehicle AT AND T is not a publisher. If I call and tell you something, AT&T is not responsible for what I said to you, the same thing. If I tweet something at you, a common carrier, likewise, it's not their fault. And one of the things they can point out, they said, you know what? If Big Tech disagrees, they can say, so. So if. If I tweet something that they don't like, if I tweet, there is a difference between boys and girls. Big Tech disagrees with that. The circuit said, you know what? Nothing stopping Twitter from attaching appending to my tweet. This is a horrible, hateful, transphobic statement that we cannot stand and we disagree and we think boys and girls are exactly the same, and no one could possibly think to the contrary. They can say that nobody's stopping them from speaking. And by the way, they do that, they're. They're now, like, flagging things they disagree with, usually anything right of center, as you know, you know, this is dubious. This is false. So they're doing it right now. Fifth Circus says, well, gosh, if you want to speak, you can, but you're not claiming a right to speak. You're claiming a right to censor. You're claiming a right to silence another voice that you don't like. That's altogether different. That's a really important distinction. I think Big Tech is definitely trying to have their cake and eat it too. So they argue we are not a publisher for purposes of liability law, for purposes of defamation, for purposes of Section 230, but we are a publisher for purposes of the First Amendment. So they're arguing it's different sources of law. It's still pretty damn inconsistent. And I think this opinion quite rightly points out the incoherence of you either are or you aren't. And I think it does so very effectively.
- [22:18]
A
The question then is, Is this going to reach the Supreme Court and how is this court going to rule on it?
- [22:23]
B
If so, I think it's quite likely to reach the Supreme Court. This is a major, major constitutional issue. There's an enormous amount of money behind these lawsuits. It is a law that affects directly 30 million Americans, 30 million residents of Texas, you know, just under 10% of the U.S. population. It is a law that will have dramatic impact on big tech nationally. If they're not allowed to discriminate in Texas, it could well force them to change how they behave to people all over the country. So I think it's quite likely the court takes this case. It's not a certainty, but if I were a betting man, and I'm a betting man, I would bet yes, that they would take the case. And I'm, you know, the court had stepped in before and disagreed with the fifth Circuit on staying the application of the district court's injunction. That was at a preliminary stage and we've talked before about how a number of the justices in the court are minimalist and incrementalists. That prior decision, I don't think it at all foreshadows where this decision on the merits goes. This is now a major serious decision on the merits of the over breath challenge. I like the chances of, of five or even six justices of the court agreeing with the fifth Circuit on this case.
- [24:09]
A
Oh, I can't wait. I can't wait to see how this unfolds. I hope that that is correct. Five or six justices, that's a, that's a pretty hefty majority right there. Okay, I do want to go over to Mailbag for a second and I want to ask, this is a very culturally hot topic. Chrissy Teagan, who is the wife, she's a mega celebrity, the wife of John Legend. I'm sure you're familiar with her. She tragically lost her son halfway through her pregnancy. Two years ago, she had a placental abruption. Essentially she was bleeding out. They had to induce her labor. He wasn't yet viable. She miscarried. She publicly posted the pictures. They were heartbreaking pictures. Fast forward two years to right now. Chrissy Teigen announces that she recently realized that her miscarriage of two years ago was actually an abortion. She said she realized this in the wake of Dobbs vs Jackson Women's Health, which overturned Roe v. Wade. Do you have a response to Chrissy Teigen?
- [25:06]
B
If there's a medical procedure in that context, it's not an abortion. And it is the law in all 50 states. And it should be the law in all 50 states that doctors can intervene to save the life of the mother, even if it means tragically losing the child. That there is nobody, even the most robust pro life advocates, nobody argues that when the woman's life is in danger that you can't take extraordinary medical steps to preserve the mother's life. And so in those circumstances, she may want to characterize it as abortion in this political context, but she described it at the time as a miscarriage. And it certainly sounds like that was an accurate description.
- [25:59]
A
Seems to me she described it in quite some detail. Very tragic. Every parent's worst nightmare. But to now characterize it as an abortion for politics also seems to add to that tragedy. Senator, thank you for this legal analysis on the 5th Circuit Court ruling on Texas's HR or House Bill 20. This is the kind of legal stuff that I like the best when we do on the Cloakroom. It's what it's diving into these issues, not just on a tweet form, not just in an op ed, but really getting into the background of what underpins this big fight. Big Tech is one of the big fights of our time. And it's going to be really fun to see how this plays out. So it was good sitting here with you tonight. I'm Liz Wheeler. This is the Cloakroom on Verdict.