First Amendment Fallacies
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S2: Some people are looking to the First Amendment to be the solution to our problems in the digital public sphere. And I think there’s a real question. Can the First Amendment be a solution here? But there’s also a question, is the First Amendment the problem?
S3: Hi and welcome back to Amicus, this is Slate’s podcast about the courts and the law and the Supreme Court and the rule of law. I’m Dahlia Lithwick. I cover some of those things for Slate. This past week has seen confirmation hearings for Merrick Garland to serve as the new attorney general, bitter division around a covid relief package and bitter division around a voting rights bill. And we’re also seeing some signaling from the Supreme Court about the future of voting rights in the courts. But we wanted to turn our gaze up and out this episode to talk about the First Amendment.
S1: Everybody everywhere, I promise, is mad right now about somebody taking away their right to speak. But if the First Amendment is unerringly the answer, it’s at least possible we might be asking the wrong question. So we wanted to consider speech and the regulation of speech all the ways in which, as I am at least coming to understand it, this the so-called marketplace of ideas is at the mercy of a Real-Life market. And all of this touches on our current global politics who regulate speech on Facebook and on Twitter and who gets to impose consequences when speeches inciting of violence. Later on in the show, Slate plus listeners are going to get to hear from the wonderful Mark Joseph Stern for an exclusive segment looking at the new shape of the Supreme Court, some hints on voting rights and also the uncanny commonalities in who gets hit with what amounts of vitriol in the ongoing confirmation process for Justice Department positions. But the issue for us this week is speech, it’s pardon me for mixing metaphors, it’s the water we swim in. It’s what we argue about. Even when we think we’re arguing about politics or law or the constitution or democracy, who gets to speak where and who decides what we see and what we say. And what, if anything, does the First Amendment have to do with any of this? Our guest today is Jameel Jaffer. He is the executive director of the Night First Amendment Institute at Columbia University. Before that, he was deputy legal director at the ACLU and director of their Center for Democracy, where he oversaw the ACLU’s work relating to free speech, privacy, technology, national security and international human rights. Tramiel has litigated some of the most significant post 9/11 cases that lie at this intersection of national security and civil liberties, including the lawsuit that resulted in the publication of the Bush administration’s torture memos and the litigation that resulted in the publication of the Obama administration’s drone memos. He has argued in multiple appeals courts as well as in the U.S. Supreme Court. I am such a fan of his work in the way he thinks. Jameel Jaffer, welcome to Amicus.
S2: Oh, thank you for inviting me. It’s great to be here.
S1: So I think I’ve had a Post-it note pinned to my screen saying do a First Amendment show for like three years, and it sweeps in every news cycle from, you know, the Facebook, quote unquote, Supreme Court. Your own litigation around Trump’s tweets cancel culture, the speech defenses that came up at the impeachment trial. And I think of the First Amendment as a framework that governs all of those things. But, of course, it implicates less and less of those things. As you suggested to me when we were thinking about this show, the First Amendment is, quote, everywhere but nowhere. And I wonder if you could talk a little bit about this tension where the Supreme Court is protecting more and more activity under the First Amendment. But as private actors flood the zone, the First Amendment actually matters less and less. Is that an accurate description of what is going on?
S2: Yeah, I think so. Know, when I said that the First Amendment is everywhere and nowhere. I was thinking about, first, the fact that the Supreme Court does keep expanding the First Amendment’s reach to more and more kinds of expression, or even not just expression, but speech very broadly construed. And you don’t just give one example. It a case called Sorrell from a few years ago, which involved data mining and drug companies efforts to market their drugs to doctors. And the Supreme Court held that this particular kind of commercial activity was speech. And there’s a stray phrase in Justice Kennedy’s opinion which says something like information is is speech, data is speech. And there is this kind of thread in recent Supreme Court jurisprudence that is consistent with that very broad conception of the First Amendment. This idea that the First Amendment protects not just speech as colloquially understood, but any effort to convey information. And if you’re a First Amendment enthusiast, then maybe your first reaction to that is, well, isn’t that great? Isn’t it great that the First Amendment is getting attached to more and more things? What might be might be greater, might be not so great. The consequence of attaching the First Amendment to new forms of expression or speech is that it becomes much, much harder for government to regulate those activities. There’s a case in the courts now in the district court now involving Clearview, which is a company that scraped millions and millions of photographs from the Internet in order to build a facial recognition app. And the ACLU and others have sued Clearview under a state law. And Illinois state law that applies to the collection and sale of biometric information clearly is actually represented by Floyd Abrams here, who is a legendary First Amendment. But to get a clear view is arguing that their activities are protected by the First Amendment and that this Illinois law is unconstitutional as applied to its activities. And that’s that just sort of gives you a sense of what’s at stake in these debates about the scope of the First Amendment, because if you interpret the First Amendment very, very broadly to encompass the right of a company like Clearview to scrape photographs from the Internet and build facial recognition apps of this kind, then you have really disabled legislatures from enacting laws that many people, including me, think are necessary to protect individual privacy and maybe even necessary to protect the integrity of public discourse, which is supposed to be what the First Amendment’s all about. So the First Amendment is everywhere in the sense that the courts are extending the First Amendment’s application to more and more kinds of activity. But it’s also true, I think, that the First Amendment is kind of strangely absent in some places where we really should want it to be present. And some of them have nothing to do with the digital age. Some of them are just much more places where we for a long time would have expected the First Amendment to be. But it doesn’t seem to be. So I’m thinking about protest rights, for example, or whistleblower rights, right. During the Black Lives Matter protest over the last year, there were all kinds of abuses by police abuses and protestors, abuses of the media, journalists being prevented from reporting on important public activities of the police, individuals being prevented from protesting when they had a right to protest. And the First Amendment seemed to do very little work in protecting those core First Amendment rights. And I would say the same thing with respect to whistleblowers. The Obama administration infamously used the Espionage Act more than any previous administration against whistleblowers who are sharing information with the press. And the Trump administration sort of continued that trend in the First Amendment is really nowhere to be found when it comes to the right of whistleblowers to share and. And national security secrets with the press, where those national security secrets would inform the public of the abuse of power by government officials, for example, or large scale waste or fraud on the part of government officials. The First Amendment doesn’t seem to be doing very much work. So the First Amendment is, is it everywhere in some senses and nowhere in other senses.
S1: What you’re saying is there are benefits to being able to regulate some of this under First Amendment doctrine, but their real harms and one of the harms is then it falls almost entirely on to private entities. In some ways that’s a good thing. I think you would contend right from the beginning, we don’t want the gov’t, whatever we don’t want the government doing. We don’t want them deciding what is speech. But you’re saying that the cost of saying, you know what, this has nothing to do with the First Amendment. It’s entirely a private entity and they should regulate that. It might be what the framers wanted, but it creates a whole host of new problems.
S2: Well, I think all that is true now. We have these private entities that are doing a lot of the work of regulating speech rights. So when we engage in political speech now, it’s often on social media platforms or on new communications platforms that are controlled by the government, but by private corporations. And those private corporations now have a very significant role in determining who gets to speak and what can be said and what ideas get traction in the public sphere. And that, I think, is a new thing and one that we haven’t, you know, collectively quite figured out how to do it.
S1: I’m just trying to get the Venn diagrams in my head. Jameel, it feels as though part of what you’re saying is the Supreme Court has been diligently beavering away. And we all stipulate this is the most speech, protective Supreme Court, right. Probably in history, creating new free speech rights in all sorts of context that there are these archaic rights. I think you were flicking at assembly. Right. Which is something that we don’t quite know what it means. It’s fallen into disuse. The doctrine is aged. So it’s not actually doing the things it’s meant to be doing. Core functions of speech, protective. What the framers would have thought is core political speech is not doing those things. The circle is expanding to encompass a whole bunch of other stuff. And then there’s this other circle that is completely a separate sphere from government regulation of speech, which is all these private actors that are subject to we keep falling into this habit of thinking of them as First Amendment problems. They’re entirely separate, but whatever they’re doing is sort of happening in some other universe where, say, the Supreme Court of Facebook is working it out as they go along. That’s that’s the table.
S2: I think that’s a good map, my complicated and one more way, which is that, yes, it’s true that these private companies are not bound by the First Amendment and that in in that particular sense, the First Amendment doesn’t have anything to do with there. I just say that that’s all true under current doctrine. There are many serious First Amendment theorists who think the current doctrine is wrong and that the First Amendment should have something to do with whether Facebook, for example, can tell somebody that they can’t use Facebook. But under current doctrine, that’s not governed by the First Amendment, Facebook is free to make whatever decisions it wants. But the reason I say we can complicate this in one more way is that when governments try to regulate the technology companies, often the technology companies are relying on the First Amendment as a means of challenging the legitimacy of those regulations. And the clear view case is a good example of it. But it’s not the only example. There’s another case that my institute is tangentially involved in in in Maine involving an Internet privacy law that restricts what Internet service providers can collect about their customers and how they can use that data. And the ISPs are challenging the law on First Amendment grounds. They’re saying this law prevents us from collecting certain kinds of information and from doing targeted advertising on the basis of that information. And that’s a restriction of our First Amendment rights and the law needs to be struck down. So it’s not just that the First Amendment doesn’t regulate the activities that these companies are engaged in, it’s that when Congress tries to regulate those activities, these companies rely on the First Amendment to challenge the legitimacy of the regulations. So this is why I think that it’s not at all you know, some people are looking to the First Amendment to be the solution to our problems in the digital public sphere. And I think there’s a real question. Can the first one be a solution here? But there’s also a question, is the First Amendment. The problem is the First Amendment, as currently understood in August of. All to the kind of legislation and regulation we need to protect the integrity and the vitality of the digital public sphere.
S1: Let’s make this just one much more complicated before we solve everything. And that is that this confounds any right left construction that you could put on it. So that and I think you are going to give me all the examples of why. But I’m thinking about Clearview and I’m thinking about, you know, the piece that you wrote about Clearview. And I think it’s really worth saying that a lot of the groups that fundamentally objected to the kind of scraping and tracking facial recognition sold to law enforcement agencies in clear view, in the clear view litigation, we’re completely delighted when the same kinds of technologies were being used by private individuals or by law enforcement to bring the capital rioters to justice after January six. Right. So this is I feel like and I know the valences, the political valences are complicated, but I also feel like in many, many ways Tramiel part of the problem and I know I’ve tracked you how you’ve been thinking about Donald Trump and Twitter because it’s similar. Right. You can be on both sides of this or neither side, depending on who’s ox is being gored.
S2: Yeah, I mean, you’re definitely right that the politics of all of this are very complicated. The ideological lines are all tangled up. Part of that is just that, you know, people who are operating in good faith are dealing with tensions between principles that they hold dear. I strongly believe that it’s a problem that these big technology companies have so much control over what can be said and who can say. On the other hand, I strongly believe that we need a digital public sphere that is not overwhelmed with harassment and abuse and hateful speech. And, you know, sometimes these two things come into conflict and it’s not obvious how we should resolve those kinds of kinds of tensions. But I was just reading this piece this morning that was arguing that we need something akin to the Fairness Doctrine for social media. In other words, we need to restrict the social media companies from kicking off their platforms on the basis of political views. And I think it’s a totally legitimate argument and a serious argument. But this argument was coming from the right. And I associate this argument with the Fairness Doctrine, which was adopted as a doctrine that we normally associate with the left. This is now kind of routine that I see arguments that I would ordinarily be associated with one end of the political spectrum. But he made most forcefully by people on the other end of the political spectrum. And then there are also some actors in this space who are not not good faith actors at all. I’m thinking in particular the debate around Section two 30, which is the as you know, the statute that effectively immunizes the platform companies for the speech that their users engage in on their on their other platform, or at least immunize them from civil lawsuits. And there are a bunch of politicians out there who claim to be concerned about the integrity of public discourse and are saying that the solution to all of this is repealing Section two 30. And I don’t actually think that, you know, anybody who’s genuinely concerned about the health of public discourse would think that repealing Section two 30 is the solution. I just don’t see those things as connected. I think it’s really about Section two, 30 has become a kind of flag to wave and a kind of cultural war. And that’s what that is about. I don’t mean to suggest that amendments to Section 230 aren’t worth considering. And there are serious proposals out there that I think are maybe good ones. But when Senator Josh Holloway, for example, says repeal Section two three, I don’t think that’s the result of a good faith effort to try to figure out what’s really ailing our public sphere. And I don’t think that’s that’s what it’s about at all.
S1: So so if I’m trying to tease you into anything, it’s it’s to to help me back into some first principles here, because I think we’re agreeing that, you know, tech companies that claim to be both subject to First Amendment protections, but immune from liability, claiming to be publishers of material and not sometimes not publishers of material, that there’s a slipperiness here. I think that makes it really hard to figure out what it is that we think we need to be building towards if we’re going to really protect speech in the in the new media era. And I think one of the questions I had for you was about Twitter, because you spent years at the Knight Foundation litigating Donald Trump’s decision to do platform. I think seven of his critics on Twitter saying that, hey, that’s this is a public forum under the First Amendment and you prevailed at the district court and affirmed in the Second Circuit. But weirdly, you, I think, are also on record being fine with Trump himself being the platform bounced completely from Twitter. And so, again, I find myself trying to square those two in order to figure out what the actual principle is.
S2: So I’ll tell you how I square them and you can tell me if it’s persuasive or not. The litigation we brought was a challenge to, as you say, Trump’s decision to kick seven people off his account or out of his comment threads because of their criticism of his administration’s policies and the sort of factual context here was new. Twitter is a relatively new platform. Social media is relatively new. But the principles we were relying on are very well-established First Amendment principles that if you have a space that is opened up to the public by the government for expressive activity, that’s a public forum under the First Amendment, which means that government actors can’t constitutionally exclude people from the space on the basis of viewpoint. And that’s the argument we made in the district court’s arguments like circuit. We won. As you said, case is still pending before the Supreme Court for some strange reason that we won in the lower courts and we’ve won the same essentially the same case in other circuits now. So I think that that’s pretty straightforward. Even though the application of the public forum doctrine to this new technology is novel. Now, when it comes to Twitter’s decision to platform Trump, Twitter isn’t subject to the First Amendment. Twitter is not a government actor. So Trump doesn’t have a First Amendment argument to invoke in this context. To the contrary, it’s Twitter that has the First Amendment argument to invoke. Twitter is saying we have the right to shape the expressive platform that we’ve created, and part of that is deciding who can speak and what the limits of the forum are. And that’s what that’s what Twitter did in this particular case. I actually think that Twitter was was right to keep Trump’s account up for as long as it did. And I’m glad that it did. I think that the public has kind of I don’t mean a First Amendment right here, but it kind of more general a right of access to the president’s speech. We learned a lot from the president’s tweets. Sometimes what we learned was horrific, but we nonetheless learned a lot from his speech on Twitter. And, you know, even when what the president was saying was offensive or untrue, I think Twitter was right to kind of rely on other users, Twitter users, to respond to that speech. And in some context, Twitter itself responded when what the president was spreading was disinformation about the election. Twitter itself attach labels to the president’s tweet saying that this is you know, this is. True, and I think that in general, that was exactly the right way for Twitter to respond. The reason I say I’m OK with Twitter taking ultimately having taken the president’s account down, is that, you know, on January 6th when the president was doing was not just speaking in ways that were offensive or wrong, but encouraging immediate unlawful activity, not just unlawful activity, but violent activity. And I think in that situation, as the kind of First Amendment theory, you can’t rely on the marketplace of ideas to solve the problem of incitement. By definition, incitement doesn’t leave time for considered responses and debate. What the president was doing was calling for it’s like, you know, telling your dog to attack. That’s not you’re not participating in the marketplace of ideas. If that’s kind of activity, you’re engaged. And I think that at that point, it became untenable for Twitter and the other social media companies to continue to host the president’s speech. So I tend to be very critical of the social media companies. But in this particular context, on this particular issue, I think that they basically got it right. And I think that they were right to keep his account up for as long as they did and right to take it down when they did.
S1: That’s the response I read that you had when people like Eugene Volokh and I think Angela Merkel I mean, people were very, very worried about the precedent being set by Twitter shutting the president down. And I think your point was the one you just made so forcefully, which is you all this is just incitement now, like it is clearly incitement. And I wonder if we’re back on the shores of where we started, which is the entire impeachment defense was this isn’t incitement under Brandenberg. This isn’t there was no face to face requirement. There was no knowledge of imminent unlawful action. And so, again, I feel like you’ve just put us back, she says accusingly into that loop of if we’re going to rely on First Amendment incitement doctrine to say it was completely appropriate to shut him down. At that moment. It doesn’t get us there. Right?
S2: You’re right. And I, I probably shouldn’t have used the word incitement. I let me just say that Twitter appropriately concluded that the president was encouraging people to engage in imminent violence. And it doesn’t matter to me whether that meets the First Amendment standard or not. Twitter is not a government act or Twitter doesn’t have to satisfy the First Amendment. But I think that for the same reasons that we generally allow the government to shut down speech when it rises to a particular level. Twitter was justified in shutting down the president’s speech when it sort of became First Amendment incitement adjacent, even if it wasn’t incitement under the the First Amendment standard now with impeachment. I think that that was just kind of almost I don’t know, category mistake is exactly the right phrase. But there, too, it doesn’t matter whether the president’s speech rose to the level of incitement under the First Amendment. That’s not the relevant standard. Right. The relevant standard is effectively is this the president we want and it’s not the relatively stringent Brandenberg test. You can impeach the president for all sorts of reasons that don’t relate to incitement of any unlawful activity. So I think that was kind of a mismatch. But that kind of mismatches, as you suggested, the routine these days that we take the language of the First Amendment and we use it in context where the First Amendment doesn’t apply or at least doesn’t apply in any direct way. And maybe that just suggests that we need some new language for these context in which we’re often referencing the same kinds of arguments that are referenced in the First Amendment context. But the First Amendment doesn’t actually operate as a legal standard, and we probably do need them in which.
S1: So that’s a perfect segue to my question about Facebook and its, quote unquote, Supreme Court, because that seems like an absolutely perfect manifestation of what you’re describing, which is we’re going to construct something that actually has nothing to do with the First Amendment legal regime that has existed for centuries. But we’re going to kind of give it the trappings of that. And we’re going to certainly colloquially call it a Supreme Court and we’re going to people it with First Amendment scholars. And I know you read the Kate clonic piece about the construction and how the court is working, how that board is working in The New Yorker. But I do wonder if it’s a little bit the same problem. I know you declined to be on that board, but the sense I get from reading. Kate’s amazing piece, and this is a sense I got, this must be so familiar to listeners of this podcast that you just have to believe in it because there’s no Plan B, right? If we don’t believe that that regulatory board is eventually going to get it right. I think in the article they liken it to Peter Pan and believing in fairies. If you don’t believe that they are going to find some perfect algorithm for regulating speech on Facebook, then we’re well and truly screwed. Right. So your your critiques notwithstanding withstanding, here’s the problem. There just has to be a Supreme Court for Facebook.
S2: Well, it depends what you mean by that. Part of what Facebook is looking for here is the appearance of constraint. They want to be able to convey to everybody that they don’t actually have all this unconstrained power. In fact, they’re subject to oversight, hence the name of the name of the entity. Right. And part of the reason they have created all that is to head off the possibility that governments around the world will themselves exercise the kind of oversight that we need them to. There is a little bit of a disconnect between the oversight that the oversight board is engaged in and the oversight that I think we need governments to to be engaged. And what the oversight board is focused on is content, moderation decision. That’s really it. Basically, when Facebook takes something down, what’s Facebook right to take that thing down or not? That’s really the limit of the board’s authority and content. Moderation decisions are sometimes important, but part of the reason they are so important has to do with Facebook’s design decisions. Engineering decisions. Right. So Facebook decides what shows up at the top of your news feed. And Facebook’s policies relating to political advertising determine how granularly targeted. Is that the word that political ads can be and whether those ads can be responded to if they include false information and those kinds of decisions, those human and algorithmic decisions that go into Facebook’s design are ultimately much, much more consequential than these decisions about content, moderation. And to the extent that content moderation decisions are consequential, it’s a largely because of these design decisions that Facebook has made previously. And so the oversight board has this very narrow jurisdiction. And by design decision, Facebook doesn’t want to turn over to the oversight board decisions about the algorithms because the algorithms are what determine whether Facebook makes money or not. And Facebook doesn’t want to give these law professors the authority to make decisions that affect how much money Facebook makes. And nor could Facebook actually turn those decisions over because Facebook is a private corporation that has obligations to its shareholders. So I think that it’s too bad that the oversight board is a jurisdiction is so narrow. But it’s also entirely unsurprising that the oversight board’s jurisdiction is so narrow. And rather than look to the oversight board to solve all our problems, we should be looking to government’s actual governments, not Facebook created governments whose members are all determined by Facebook and whose resources come from Facebook. But real governance and real governments should focus not on content moderation, but on these deeper questions about the structure of the social media platforms and even broader questions about how technology companies deal with the privacy of their users, questions relating to transparency and accountability to the public for the decisions that they’re making. There are lots of ways that governments could improve the health of our digital public sphere. But privacy regulation is where I’d start, but also antitrust interoperability mandates which would make it easier for people to leave one platform and and move to another. Transparency mandates that would require the companies to be more accountable to the public for the kinds of decisions that they’re making. There are lots of ways that actual governments could regulate these companies. And I see the oversight board as in significant part, an effort to preempt or sap the energy, the political energy that would otherwise be put behind those efforts at legislative reform.
S1: I think you made a version of this argument really recently in The New York Times. And you said effectively what you just said here, which is treating Facebook as though it’s some vast public square for speech purposes and then having a board of people determine, you know, what can and can’t be pulled down really elides. This huge design problem, which is that Facebook is a money sucking, privacy sucking entity that feeds you information for reasons other than purely marketplace of idea reasons. And it does bring me back to this one first principle question I wanted to poke at with you, Gmail, which is that metaphor, the marketplace of ideas has been so completely corroded. I think we’re so fond of it. And there is just an abiding, I think like very sweet American notion that good speech is always going to be the cure for bad speech. But the marketplace of ideas is, I mean, much smarter people than I have offered critiques for decades about how ass backward that marketplace of ideas is as a metaphor when you know, it’s absolutely not in any way a marketplace and it’s certainly not surfacing all ideas so that consumers can pick the best ones. Do you have for the digital age a more workable or more apt metaphor for how to think about this, given that I think the marketplace ultimately that we’re looking at with these online platforms is for us?
S2: Yeah, I mean, you’re right that it’s a deeply problematic metaphor, whether it’s problematic because what we have isn’t a marketplace of ideas or because what we have is a marketplace of ideas. I’m not sure. Maybe there’s a little bit of both that it’s problematic in both senses. But even if you do subscribe to the marketplace of ideas, even if you think that that is an apt description of what we have or what we should be aspiring to, part of the challenge with social media platforms is that they insulate or they can insulate people from views that are different from their own right. And maybe the main insight of the marketplace of ideas or the main component of that theory is that bad speech will be corrected by good speech. But the structure of the social media platforms sometimes interferes with that possibility. It deprives people of access to or shields them from the good speech that would correct the bad speech. I don’t actually know how big a problem. I think that is a problem. And there are filter bubbles on social media and social media companies have an incentive to create those filter bubbles or the filter bubbles result from the incentives that the social media companies have. How much of that is responsible for the defects in our larger political discourse? I’m not I’m not actually sure, but I just say that because I think that even if you love the marketplace of ideas, you might still wonder whether the social media platforms are serving public discourse or serving the needs of our democracy.
S1: What happens on social media platforms and doesn’t resemble the marketplace of ideas as usually described before I say goodbye, I think I want to ask you, you’ve you’ve at least hinted at a whole bunch of different legislative antitrust regulatory fixes that could start to solve some of the problems that we’ve described here. But I wonder if we can pan back and just talk about the ways in which this is ultimately a global problem. And we can talk about Australia’s efforts to regulate Facebook and Google, forcing them to pay publishers for news and shutting the whole thing down. But I wonder if part of what is worrying me is we get really myopic in the United States talking about this as a First Amendment problem. I think we’ve now established conclusively it’s not only a First Amendment problem, but it’s even beyond American problems and American fixes and American frameworks. We’ve got a global problem. And I wonder if you or night or someone with a much bigger brain than me has a kind of overarching theory of how this gets done.
S2: Yeah, yeah. I mean, you’re absolutely right that that and I you know, I’m more guilty than most of this. But you’re absolutely right that that the debate in the United States is sometimes too myopically focused on the First Amendment. And that’s a problem for multiple reasons. One of them is that the First Amendment is an American thing and nobody else cares about it. But the other is that it’s not obvious that the First Amendment is offering its better solutions to these problems than Section 2B in Canada, for example. Right. There are in many other countries that are struggling with these same issues, and some of them seem to have come up with better solutions than we have. So, you know, we should be open minded about what can be learned from the experience of other countries. But I agree that there’s a global problem here, I don’t know that that means that the solution should be global. Right. When I talk about what I think the right answer is, I often have, even if I’m not at that particular moment thinking about it in this way, I often have American institutions in the back of my mind. So when I say that, yes, it made sense for Twitter to keep Trump’s account up for as long as it did. You know, I have American institutions in the back of my mind and I am taking into account the other kind of checks on government power. So, yes, I worry or I worried that Trump would order the military to do some crazy thing. But I also knew that there are other checks on his power. Now, if we are talking about Trump or we were talking about Duterte instead or we’re talking about Modi in India, it’s a different set of institutions that are at play in those places. And whether the same solutions make sense in those places as make sense of the United States, I don’t know. You have to talk to people who know those societies a lot better than that. I do. Whatever solutions we come up with. Are going to make sense against the background of some set of institutions, and those institutions are unlikely to be global, they’re more likely to be local or national. And so I think that it may be that the problem is global, but that doesn’t mean that no one solution is going to be there’s a kind of one size fits all solution to that problem.
S1: So maybe if we can agree on one lingering principle for listeners today, it could be this. It’s all really complicated and it’s changing faster than we can get our heads around it in some sense. Probably if you and I had had this conversation three years ago, we would have talked about fundamentally really different concerns. But that what isn’t useful, Jameel, is to continue to stand up and say, cancel the culture, cancel my right to speech. I have a right to publish this book. Everybody’s silencing me. None of those. Yes. Yes. We’ve leveraged and all the speech conversation are useful, right? I absolutely agree. OK, well, I think maybe that’s as good a place as any to conclude a conversation that I really feel like I’m only beginning to figure out how to think about. Jameel Jaffer is executive director of the First Amendment Institute at Columbia University. Before that, he was deputy legal director at the ACLU and director of their Center for Democracy, where he oversaw their work relating to free speech, privacy, technology, national security and international human rights. I think I’ve known him since back in the days when he was working on national security around the torture memos. So it makes me feel that’s right. As though we are both very, very old and shaking, in fact.
S2: Do you remember you you came to an event, I think, at Sundance that we put on about the torture memos. I was just remembering that now must in 2000, I don’t know, six or seven or eight. I don’t know that I can remember exactly when, but a long time ago.
S1: Jameel Jaffer, I know you’re crazy busy and I know that a lot of us look to you in these confusing times to help us figure it out. Thank you for making time for us. Thank you so much time. And so we come to the part of the show that is everybody’s favorite except the people who don’t know about it. And it would be their favorite, which is our Slate plus segment with Mark Joseph Stern, which is always amazing. And Mark, hi. Welcome back.
S4: Hi. Happy to be here.
S1: And this has been a week, lots going on, but I thought maybe we could start on Monday with Clarence Thomas, who goes after the court for staying out of the Pennsylvania election in a solo dissent for the ages. Will you? I’m only laughing. Somebody accused me last week of laughing too much in my conversations with you. And so I’m only laughing because it’s funny. But can you can you start us off with Clarence Thomas solo dissent?
S4: Oh, absolutely. It’d be my pleasure. We all had the pleasure, in fact, of beginning our weeks this Monday with Clarence Thomas dissent from the court’s decision not to hear the Pennsylvania election case. And actually the Supreme Court turned away all of the remaining election cases. Right. They said we’re not dealing with this. The election is over. And with regard to the Pennsylvania case, which, as we discussed many times, is about these ballots that came in a few days after the deadline. Right. A lot of controversy over those ballots. The court said, look, this is moot. You know, the election’s over. The result has been certified like clearly there’s nothing we can do here and we’re just going to stay out of it. That really irritated Clarence Thomas. And there’s so much that irritates Clarence Thomas. So it’s not saying a lot, but this really got him going because, you know, Clarence Thomas does not like voting rights and he really hates it when lower courts protect voting rights, which is what happened here. The Pennsylvania Supreme Court came in and said, look, we’ve got covid putting unprecedented demand on our mail voting system. We’ve got USPS delays that mean through no fault of the voter, these ballots are going to get caught up. Right. So we’re going to extend the absentee ballot deadline by three days. So ballots that come in the mail, as long as they arrive within three days of Election Day, we will count them, which, by the way, is a rule in many other states. There are a ton of states that count ballots that are mailed by Election Day, but come in a few days later, including even Texas, which is not exactly like a blue liberal state. So Clarence Thomas was really mad about that decision and he was really mad that the Supreme Court, the U.S. Supreme Court, didn’t step in and. Armpits, boots all over the face of the Pennsylvania Supreme Court, and so he wrote this dissent that putatively was complaining about this this case and the U.S. Supreme Court’s inaction here, but actually was a direct attack on the integrity of male voting. There’s this bizarre tangent, really, in which Thomas rants that voting by mail is inherently suspect, that it’s rife with fraud, that fraud is just prevalent and pervasive when people vote by mail, and that it doesn’t matter that we didn’t detect mass fraud in the 20 20 election, because if it’s really sophisticated, it might go, quote, undetected. Now, you tell me, who exactly does that sound like? Where have we heard these talking points before?
S1: And I guess it’s worth saying, you know, there are three justices, so it’s a six three decision. There are three justices who say we should still look at this again because there are issues that are going to come up again. Right. Alito and Gorsuch, nobody touches Thomas’s dissent. He’s writing for himself because this is not about we should really revisit this issue because it should come up again. This is ceding the big lie.
S4: Exactly. And I think that’s the tell that Gorsuch and Alito were just as irritated that SCOTUS didn’t throw out all of these ballots in Pennsylvania, but they had their separate dissent that was much more measured and calm. They did not touch Thomases because I assume even Alito, who I consider to be the most partisan justice, although I guess it’s a tie with Thomas now, even Alito did not want to touch what Thomas was doing here, which was, as you said, seating the big lie, promoting and I think really endorsing all of these talking points that Donald Trump put out endlessly before and after the election about how mail voting is fraudulent and suspicious and that we can never have faith in the outcome of an election that’s conducted largely by mail because the fraud is both pervasive and undetectable. You know, that is the canard, the toxic myth at the heart of the big lie. And that is what Clarence Thomas endorsed in his opinion. And I think we should note, another aspect of this opinion is Thomas said, people are worried about this, this pervasive fraud that’s going undetected. And even though we haven’t found any evidence of it, their fears are enough to justify more voter suppression laws. So people’s fears that there could be voter fraud through mail voting fears that are put out and promoted by Republicans and judges like Clarence Thomas, those fears are sufficient to then justify new restrictions on mail voting. So you can basically, if you’re a Republican or a partisan Republican judge, you can concoct a false myth of mass voter fraud by mail. You can fail to produce any evidence to back up that claim. And then you can still use this myth, this false fear, to justify both passing and upholding voter suppression laws. It is a vicious circle. And Thomas just made sure that every Republican legislator in the country who’s thinking about suppressing voting rights has an opinion. He can wave and say, look, I’ve got a Supreme Court justice on my side.
S1: Larry Tribe had an interesting piece where he also noted that one of the many things Justice Thomas did in that solo dissent was cherry pick something. Heather Gerken, the dean of Yale Law School, had said in reference to how to steal an election. It’s a nit picky point, but the larger point that Professor Tribe makes that I think is really important is that nobody can check these untruths that Heather Gerken can’t then write a law review article or an op ed saying Clarence Thomas totally distorted what I said about stealing elections because she’s the dean of Yale Law School. Joe Biden cannot write an op ed saying this is a lie. And I don’t care if Steve Scalise wants to not say it’s a lie on the Sunday shows, it’s a lie. So these things go unchecked. And because institutionalists protecting institutions will not fight this. And I think it’s just an important point because it really takes us back to that loop of, as you say, these distortions then have a life in their own because the people who want to suppress the vote say that the distortion itself is must be true and nobody can correct it because. Institutions and people who protect institutions are not going to say, Clarence Thomas, you’re full of it, so it’s met with silence.
S4: And, you know, we should note, like Democrats and liberals and progressives who in other contexts will say that Donald Trump is lying when he says the exact same thing. Who will say that Steve Scalise is lying when when he says the exact same thing, they won’t say that Clarence Thomas is lying. They will try to sugarcoat what he’s saying or they will avoid talking about it because they they often work in the legal profession. They may know people who know people. They may run in these elite circles where it’s taboo to say a Supreme Court justice is lying his face off. It is taboo and considered out of bounds to accuse a Supreme Court justice of lying. Even when you would say that the president of the United States is lying when he says the same thing verbatim, that is a problem. That is exactly what you say. Institutions protecting institutions, law professors do not want to go on record saying that Clarence Thomas is a liar. They get nominated for a seat in 10 years. Republicans are going to blow up that tweet and put it on a billboard and use it to take their nomination. So there is a problem with simply acknowledging the truth here, because there can be serious repercussions for people who call out justices.
S1: And such a good point, Mark, that Justice Thomas’s theory of the case is, I’m not saying the election was stolen. I’m saying that people are saying the election, you know that. And which is exactly the move that Judge Holly and Ted Cruz used when they didn’t want to certify the vote. Right. I’m not making any claims. I’m just saying my constituents are worried. And it really allows the fear itself, the unfounded fear itself to be the engine of voter suppression. And it takes me to, you know, Ari Berman, who reports the heck out of attempts to block the vote, tweeted this week, 253 new voting restrictions introduced in forty three states in two months. I’m going to say that again, 253 new voting restrictions introduced in 43 states in two months. We’ve never seen anything like this. And his point is, I think the second half of the tweet is across the country. Republicans are weaponized. Trump’s lies to justify mass voter suppression. He’s got a piece up at Mother Jones. But you and I are sitting here talking about this as though it’s just a constitutional problem. And Clarence Thomas is one of nine justices. But this is the stuff that people are waving around when they pass bills that allow for voter roll purges and hyper voter ID. And this is the kind of stuff that is going to curb vote by mail, which it turns out people really loved. And here we have H.R. one up again to to look at expanding the franchise in ways that masses of Americans support. And we’ve got crazy stuff being baked into the doctrine saying that vote fraud is rampant.
S4: Right. And it’s probably just worth pausing at this point to say like voter fraud was not rampant. It essentially did not happen in twenty twenty and it has not happened in modern times. And Trump’s own Department of Homeland Security called the 2020 election the safest, you know, in history. But for Republicans, that’s just one side of the story. And they have to come in and present the other side, which is, oh, people are scared that there was fraud. We’re going to stoke those fears so that we can say it. People are convinced that this election was illegitimate. They go to their state legislatures. They pass these bills based on those fears that are unfounded and then courts uphold them because the courts have said that protecting and bolstering faith in the legitimacy and security of elections is an important state interest and allowed legislatures to pursue that interest by enacting a bunch of restrictions that we all know are simply about blocking access to the ballot. So we have the truth here, like we know the reality. But as you said, the other side is able to create this narrative and then use a narrative built on sand to construct an entirely new regime of voter suppression. That’s worse than anything we’ve seen in modern history.
S1: And shout out to Carol Anderson, who’s talked often on this show about how that has been weaponized against minorities and people of color forever in this country. This notion of, you know, who who gets to cast a legitimate vote, I guess, before we leave the court, Mark, I do have to ask you this question, which is Amy Barrett. She was she joined with the liberals in that Alabama death penalty case that stayed an execution that we talked about did not join with Thomas, Alito and Gorsuch in this Pennsylvania case.
S4: Is she proving to be chief justice like in her centrism, so I wouldn’t say chief justice like at this point, I would say Cavnar ask because the chief justice actually is in some ways a bit of a centrist. Right. He is also very conservative on most issues, but he has a real passion for moderation in some contexts. I don’t think that’s true of Kavanagh’s substantively. I think substantively Kavanagh’s really conservative, but he seems intent on performing moderation, on presenting the image of being a moderate, temperate justice. And we see this often on the bench or I guess now virtually when he asks questions, he does not take the Scalia approach. Right. He’s not angry. He’s not nasty or sharp or incisive. He’s very eloquent and often sort of polite. And we see it in his opinions where he will he will rule in a very conservative way, but not join the fire breathing decision from Clarence Thomas, for instance, or Sam Alito, and instead go his own way and say, I’m not a bad guy. I’m just casting this vote because that’s what the law requires. And I think that may be what we’re we’re going to see with Amy CONI Barrett. You know, it’s a little too soon to draw any conclusions. It’s still pretty early. We’ve got a small data set, but so far she has made a few moves that seem to align her with Cavnar, not in the sense that she’s moderating her ideology. I think she’s extremely conservative, but she’s not necessarily going to reach out and grab every single issue before her. She’s not necessarily going to take out her sword and just go all in. And the culture war battles the way that Alito will. She’s willing to sit back and kind of wait for these issues to percolate up in a way that some of the other conservatives aren’t. And she’s also seemingly eager to present herself, as you know, an intelligent, polite, thoughtful person who is just doing their level best to be a judge and decide each case on the merits rather than establish some profound, overarching ideology that will lead a new generation of conservatives into battle the way that Scalia did.
S1: So it’s tone and tactic here saying more than world view and that that that strikes me is as correct. I wonder if we can end on Merrick Garland. I watch gavel to gavel. I think it was probably as uneventful a hearing as I’ve seen in a long time, it was very, very clear that Republicans are going to hold their fire on Garland and save it for Vernita and Kristen Clarke and Neera Tanden, the folks who they think they can actually take down. My one side about Garland that I wanted to share is there was really, to me, fascinating how much and I think I wrote this, but I can’t remember because it was Monday how much the complaints that were being directed at Merrick Garland were firmly lodged in the Obama era. You know, Ted Cruz ranting about Fast and Furious and Eric Holder. And, you know, I didn’t hear Benghazi come up, but it probably did. But it was weird. It was as though the last four years had just not existed. And you were just picking right up where they left off with Obama’s reckless use of the Justice Department for his own partisan ends. What was your take away from the Garland hearing?
S4: My takeaway is I agree that Republicans are still stuck in the Obama era. And in some ways, when it comes to opposing these nominees, I also think Republicans are not super interested in taking a moderate white guys nomination. It’s very telling that even during Garland’s hearing, they were going after women of color. Right. People they deemed to be more susceptible to their criticisms and sometimes smear campaigns. And they think they might be able to get some Democrats to vote against them, query why they think that women of color and people of color are an easier target than boring old white guys. But, you know, I also think that in some ways, this hearing was Republicans kind of giving up on this particular nominee in this particular nomination and deciding we’ve got a lot of anger about the Obama Justice Department. We’ve got a lot of fears about the upcoming Justice Department. We think that it’s going to be stacked with radicals and it’s going to do a lot of progressive stuff that we hate. But we know that it’s not going to be effective to attack Garland with those fears. You know, this guy is just an avatar for the no offense to him, but like the blandest, most digestible version of Democratic politics that exists and Republicans just didn’t even really try. Instead, they tried to warn him, hey, if you try some of this stuff in the future, we will go after you and we will use your black and brown subordinates to try to smear you and your agency.
S1: Yeah, I mean, I will say it’s interesting, some of the really pernicious moments for me in the hearing, not just Mike Lee going after women of color, but also John Kennedy from Louisiana, sort of taking umbrage at the notion that you can have unconscious implicit bias, you know, that that equality and equality are somehow, you know, just really almost tone deaf. That if you’re saying that I have unconscious bias that I don’t know about, it must be the case that you’re calling me a racist and I can’t. It’s really interesting that in addition to the very thick layer of you better make sure that the Justice Department is single mindedly pursuing religious liberty for protection, which was kind of undergird a lot of the questioning. Just this idea that your very awareness of race and by the way, credit to Garland for defending Vanita Gupta and Kristen Clarke as as full throated Lee as he did. But it’s really interesting to see senators want to wade in and discredit the notion that there is inherent police bias, that there is inherent bias in the way we live our lives. It was really quite I don’t know why it was striking to me. I would think they would just stop doing this. But no, they can’t they can’t resist the temptation.
S4: Yeah. Even though they know they’re not going to get any traction on it with Garland himself. I guess they’re laying the groundwork here. They’re creating sound bites for the future. When Garland, I don’t know, oversees some kind of consent decree with an abusive police department, Republicans can say, we warned you. You know, it’s it’s going to be interesting to see whether they continue to try to aim these arrows directly at Garland or if this was, as I suspect, probably the end of the road for the anti Garland campaign in the beginning of a new broader campaign against all of the luminaries of civil rights and voting rights who are going to be working for him in the near future.
S1: Well, let’s. Just put a pin in the fact that the ad buys are targeting Vernita and Kristen Clarke and Xavier Becerra, the big dark money ad buys, so let’s think about why, as you suggest, Wunder query why. Mark Joseph Stern joins us each episode to talk about the Supreme Court and other bits of news that may have gotten lost in the main show. Mark, as ever.
S3: Thank you. As always, a pleasure, Dolia. And that is a wrap for this particular episode of Amicus. Thank you so much for listening in. And thank you so very much for your letters, your questions, your queries. You can always keep in touch at Amicus, at Slate, Dotcom, or you can find us at Facebook dot com slash amicus podcast. Today’s show was produced by Sara Birmingham. We had research help this week from Daniel Maloof. Gabriel Roth is editorial director. Alicia Montgomery is executive producer. And June Thomas is senior managing producer of Slate podcasts. Take good care of yourselves. It is a long winter bewell and we will be back with another episode of Anarchist’s in two short weeks.