SCOTUS Decisions on Political Immunity and Content Moderation

From: allin

The Supreme Court recently issued several consequential decisions, including rulings on content moderation by online platforms and the scope of presidential immunity. These decisions have sparked debate regarding the balance of power, the role of government, and the interpretation of constitutional rights [00:37:37].

Content Moderation Cases: NetChoice v. Florida and Texas

The Supreme Court addressed two controversial laws passed in Florida and Texas in 2021, which aimed to regulate content moderation practices of large online platforms [00:35:05].

• Florida Law: Covered platforms with over 100 million monthly active users or $100 million in annual revenue, targeting sites like X, YouTube, and Meta (Facebook) [00:35:11]. It required platforms to notify users if posts were removed or altered and to make general disclosures about their operations and policies [00:35:26].
• Texas Law: Applied to platforms with over 50 million monthly active users and similarly required notification and explanation for removed posts [00:35:36].
• Motivation: These laws arose from conservative concerns, particularly after events like Donald Trump’s suspension from various platforms and the labeling of content [00:35:50]. The intent was to reduce censorship, especially of conservatives [00:37:58].
• The Ruling: NetChoice, a tech industry group including Facebook and YouTube, sued to block these laws [00:36:04]. The Supreme Court issued a unanimous decision, with Justice Elena Kagan writing the majority opinion [00:36:12]. The Court held that the editorial judgment and curation of other people’s speech by platforms is a unique expressive product protected by the First Amendment [00:36:19]. This means platforms can decide their content policies, whether allowing anonymous accounts like X, or downplaying political content like Threads [00:36:28]. The cases were sent back to lower courts for further clarification [00:36:54].
• Panel Commentary:
  • Chamath Palihapitiya noted the unanimous decision indicated the case probably shouldn’t have reached the Supreme Court [00:37:21].
  • David Sacks stated that while the Texas and Florida laws had good intentions to protect citizens’ free speech, they were “overly broad” and infringed on the free speech of corporations [00:37:53]. He expressed disappointment that this ruling wasn’t coupled with a stronger decision in the Missouri v. Biden case, which concerned the government’s attempts to pressure social media companies to remove speech (known as “jawboning”) [00:38:42].
  • David Friedberg argued that online platforms are “content companies,” not utilities, and have the right to curate content as editors, much like traditional media [00:39:46]. He supported the ruling, believing the government should have less intervention in how companies create and editorialize content [00:41:21].
  • Jason Calacanis agreed, emphasizing that the marketplace should determine winners and losers, not government regulation [00:41:51]. He highlighted historical precedents where attempts to force media outlets to publish certain content were rejected [00:42:16].
  • A critique was raised about states like Texas and Florida being “insular and protectionist” in passing such laws, which could limit innovation [00:42:41].

Presidential Immunity: Trump v. United States

The Supreme Court also issued a significant ruling on presidential immunity, stemming from special counsel Jack Smith’s prosecution of Donald Trump for alleged attempts to overturn the 2020 election and his role in January 6 [01:05:30].

• The Case: Trump argued he should be immune from prosecution for acts committed while he was President [01:06:01]. This prosecution concerned actions such as pressuring Mike Pence not to certify the election, his call to Georgia to “find” votes, and efforts involving “fake electorates” [01:05:47].
• The Ruling: The Court ruled 6-3, along party lines, that former presidents cannot face prosecution for actions directly related to the “core powers” of their office [01:06:07]. All “official acts” receive “at least a broad presumption of immunity” [01:06:22].
  • Chief Justice John Roberts’ majority opinion stated that the nature of Presidential Power entitles former presidents to “Absolute immunity for criminal prosecution for actions within his conclusive and preclusive constitutional Authority” and “at least presumptive immunity from prosecution for All His official acts” [01:06:30]. However, there is no immunity for “unofficial acts” that fall outside the President’s duty [01:06:51].
• Dissent and Implications: Justice Sonia Sotomayor, in a notable dissent, argued that under this ruling, criminal law cannot be applied to presidents, “even if they misuse their office for personal gain” [01:07:07]. She offered the hypothetical of a president ordering a Navy SEAL Team Six to assassinate a political rival, suggesting such an act would be insulated from prosecution [01:07:13]. She concluded with “with fear for our democracy I dissent,” breaking from the traditional “respectfully dissent” [01:07:22].
  • The immediate impact is that the case will return to lower courts, which must now determine if Trump’s conduct (e.g., pressuring Pence or calling Georgia officials) was “private” or “related to his official Duty” [01:07:31]. Trump has already cited this immunity ruling in his request to throw out his hush money conviction [01:07:56].
• Panel Commentary:
  • Jason Calacanis agreed that a president needs immunity for conducting official business but not for actions outside those lines [01:08:21]. He considered Sotomayor’s Seal Team Six hypothetical “hysterical” [01:09:06].
  • David Sacks called it an “easy decision,” codifying a long-presumed broad immunity for presidents’ official acts [01:10:47]. He noted that civil immunity for presidents was established decades ago, and criminal liability should follow suit [01:11:04]. Sacks attributed the need for this ruling to “unprecedented lawfare” against Trump, the political opponent of the current president [01:11:26]. He quoted Roberts, emphasizing that the dissent’s position “fearmongers on the basis of extreme hypotheticals” instead of recognizing the practical reality that without immunity, future presidents could be hampered by fear of prosecution by successors [01:12:12].
  • David Friedberg highlighted the critical distinction between acting in an “executive capacity” versus a “personal capacity” [01:13:26]. He noted that the lower courts would have to adjudicate whether actions like interfering in an election constituted an official role or a personal benefit [01:14:00].
  • Sacks clarified that the Supreme Court provided a “doctrine” and a “three-part test” for questions of law, while the lower courts would address questions of fact (e.g., whether Trump’s actions were personal or official duty) [01:14:49]. He suggested that Jack Smith’s prosecution faces an “uphill battle” and should “just resign,” especially when combined with the Fischer v. United States ruling, which restricted the use of Sarbanes-Oxley for January 6 obstruction cases [01:17:32].

General Views on the Supreme Court

The discussion also touched on the overall nature and perceived ideology of the Supreme Court [00:44:28].

• Non-Ideological Splits: Contrary to public perception, many Supreme Court decisions are not purely split along ideological lines [00:45:56]. Examples cited included an 8-1 decision on prohibiting firearms for domestic violence restraining orders, a 9-0 decision on Trump’s eligibility for the Colorado ballot, and non-ideological splits on cases like Idaho’s abortion law [00:45:04].
• “Originalist” vs. “Conservative”: Chamath Palihapitiya suggested the Court is more “originalist” (interpreting the Constitution strictly as written) than purely “conservative” [00:55:37].
• “3-3-3 Court”: David Sacks described the Court as a “3-3-3 Court,” with three conservatives, three liberals, and three justices in the middle (Roberts, Kavanaugh, Barrett) who sometimes side with liberals and sometimes with conservatives, creating a “balance” or “equipoise” [00:56:14].
• Critique of Court Packing: Sacks criticized powerful lawmakers like Elizabeth Warren for calling to “pack the court,” arguing that such actions would destroy the Court’s functionality and equipoise [00:56:45]. He believes the Court is one of the last “highly functional institutions in American public life” [00:57:01].
• Roe v. Wade and Public Opinion: The counter-argument against the Court’s perceived non-partisanship points to the overturning of Roe v. Wade, a decision not supported by the majority of the country, and the fact that three justices appointed by Trump contributed to this outcome [00:57:21].