Summary of "The Cloakroom Preview: Supreme Court Showdown Over Big Tech"

Episode Title: The Cloakroom Preview: Supreme Court Showdown Over Big Tech
Release Date: October 3, 2022
Podcast: The 47 Morning Update with Ben Ferguson
Host: Ben Ferguson
Guest: Senator Ted Cruz
Produced by: Premiere Networks

1. Introduction to the Episode

The episode begins with Liz Wheeler introducing "The Cloakroom," a series hosted alongside Senator Ted Cruz on Verdict Plus. The primary focus of this episode is the recent ruling by the Fifth Circuit Court of Appeals against Big Tech companies concerning the censorship of conservative viewpoints. Wheeler sets the stage for an in-depth legal discussion, highlighting the potential for this case to ascend to the Supreme Court, potentially becoming a landmark showdown between the judiciary, constitutional principles, and major technology corporations.

2. Overview of the Fifth Circuit Ruling

Liz Wheeler (00:00):
"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."

The ruling centers on Texas's House Bill 20 (HB20), which prohibits large social media platforms from censoring speech based on the speaker's viewpoint. The Fifth Circuit's decision challenges the platforms' stance that such regulations are facially unconstitutional, arguing that corporations do not possess an unenumerated First Amendment right to restrict speech.

3. Senator Ted Cruz’s Analysis

Senator Cruz (04:12):
"This is an incredibly important decision. 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."

Senator Cruz delves into the specifics of HB20, emphasizing Texas's proactive stance in protecting free speech against what he perceives as Big Tech's overreach. He outlines the legal battle initiated by Big Tech, highlighting their significant financial resources and legal teams that successfully secured an injunction at the district court level, which the Fifth Circuit has now reviewed.

Key Points from Senator Cruz:

• Judicial Background:
  "Judge Andrew Oldham... is a veteran litigator... President Trump nominated him. We confirmed him."
  Cruz underscores the conservative credentials of Judge Oldham, indicating that the ruling reflects a serious judicial consideration rather than ideological bias.

• Facial Challenge Explained:
  "A facial challenge is saying there is no circumstance in which this law can be applied unconstitutionally. It is, on its face, unconstitutional."
  He explains the legal strategy behind challenging HB20 before it takes effect, contrasting it with the more common "as applied" challenges.

• Common Carrier Doctrine:
  "Big Tech today, they are monopolists, they are much, they are common carriers. That's how the state regulated them."
  Cruz connects HB20 to historical common carrier regulations, arguing that social media platforms, as modern-day common carriers, must adhere to non-discriminatory practices akin to traditional communication and transportation industries.

• Distinguishing Big Tech from Publishers:
  "Big Tech is very different from a newspaper... They are claiming a right to censor."
  He differentiates social media platforms from traditional publishers, asserting that Big Tech's claim to editorial discretion is inconsistent with their role as public marketplaces of ideas.

4. Potential Supreme Court Implications

Senator Cruz (22:22):
"If I were a betting man, and I'm a betting man, I would bet yes, that they would take the case."

Cruz anticipates that the Supreme Court will likely hear the case due to its significant constitutional implications and the substantial financial and political stakes involved. He expresses confidence that a majority of the justices may align with the Fifth Circuit's ruling, further restricting Big Tech's ability to censor based on political viewpoints.

5. Mailbag Segment: Chrissy Teigen’s Personal Experience

Towards the end of the episode, Liz Wheeler introduces a culturally pertinent topic involving Chrissy Teigen:

Liz Wheeler (25:05):
"Chrissy Teigen announces that she recently realized that her miscarriage of two years ago was actually an abortion."

Senator Cruz's Response:
"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."

Cruz clarifies the distinction between medical procedures performed to save the mother's life and elective abortions, emphasizing that life-saving interventions are legally and ethically permissible across all states.

6. Conclusion

Liz Wheeler (25:59):
"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."

Wheeler wraps up the episode by expressing appreciation for the thorough legal insights provided by Senator Cruz, highlighting the importance of understanding the foundational legal battles shaping contemporary political and technological landscapes. She reiterates the significance of the Big Tech censorship debate and its far-reaching implications for free speech in America.

Notable Quotes

• Liz Wheeler (00:00):
  "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."

• Senator Cruz (04:12):
  "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."

• Senator Cruz (09:32):
  "...the opinion is really impressive. It goes..."

• Senator Cruz (17:50):
  "...Big Tech is definitely trying to have their cake and eat it too."

• Senator Cruz (22:22):
  "I would bet yes, that they would take the case."

Key Takeaways

• Legal Battle: The Fifth Circuit's ruling against Big Tech sets the stage for a potential Supreme Court showdown, challenging the ability of large social media platforms to censor based on political viewpoints.

• Texas's Role: Texas, through HB20, is at the forefront of legislative efforts to combat perceived Big Tech censorship, stepping in where the federal government and Congress have not.

• Judicial Perspectives: The conservative-leaning composition of the judiciary, exemplified by Judge Andrew Oldham's ruling, plays a crucial role in shaping the outcomes of such high-stakes legal battles.

• Common Carrier Argument: By classifying Big Tech as common carriers, Texas aims to enforce non-discriminatory practices, paralleling regulations historically applied to industries like telecommunications and transportation.

• Supreme Court Trajectory: Given the constitutional significance and the resources involved, the case is poised to attract Supreme Court attention, with a likelihood of alignment with the Fifth Circuit's stance.

• Cultural Relevance: The episode also touches upon sensitive cultural topics, illustrating the intersection of personal experiences with broader political and legal debates.

This episode provides listeners with a comprehensive analysis of the evolving legal challenges surrounding Big Tech and free speech, offering insights into the potential future of online discourse and regulatory frameworks.