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  • Writer's pictureAnastasia Boden

Keeping up with the Court: 3/18/24

This week the big SCOTUS cases are about… SURPRISE: government entanglement with social media!!!


Does anyone else think that maybe 1) people need to start spending a little less time on social media, and 2) government needs to get out of the whole thing?


On Monday, the Court will hear Murthy v. Missouri and NRA v. Vullo, both of which consider when the government wink winks nudge nudges at a company a little too hard, such that a private companies’ actions are actually a result of government coercion. That is, the government can’t do things indirectly that it could not do otherwise outright. And so in this hyper-regulated world, the government can’t take advantage of its regulatory power to twist other people’s arms to violate the Constitution and evade constitutional restrictions.



There are those on left and right (Elizabeth Warrens and Ron DeSantises of the world, unite!) who think that tech companies have become so big that they have market power equivalent to government power, and are therefore subject to the same constitutional limitations as the government. A few weeks ago, the Court heard cases involving whether big companies should, for one reason or another, be subject to the First Amendment. Many libertarians resist that urge to blur the lines between public and private. But these two cases present one area where the Venn diagram may overlap: occasions where the government is actually forcing private companies to do its will. In those situations, the conduct should properly be considered state action rather than private conduct, and subject to constitutional restraints.


In Murthy v. Missouri, the government “communicated” to social media platforms about “public health” (i.e. COVID-19) and asked/nudged/directed (depends on who you ask) those companies to take down certain posts that it classified as “misinformation.” This is all so so so bad. The First Amendment prohibits the government from keeping a stranglehold on the free flow of information. The question is: when does the government cross that line by not censoring people itself, but instead asking others to do its bidding.


There’s also the perennial question of standing: that is, who can sue? Do individuals who have had their accounts suppressed have standing to challenge the government’s actions towards the social media platforms? It would seem to me, a mere constitutional lawyer, that if the government coerces a third party to harm another in a way that it could not harm that third party outright, the third party has standing to challenge the government’s conduct. But the government wants as narrow standing rules as possible, especially when it’s difficult for social media companies to sue themselves. And courts continue to surprise me in all the ways they will rule there’s no standing.


The government, for its part, insists that “so long as the government seeks to inform and persuade rather than to compel, its speech poses no First Amendment concerns.” The problem is that today’s behemoth administrative and incarceral state presents a zillion opportunities to constantly threaten by innuendo and pressure companies to comply. Even an eventually-dropped investigation poses significant time, money, and reputational harm, so companies feel pressure to do what the government says. The Fifth Circuit therefore applied a four-factor test to determine whether the government’s conduct crosses the line into coercion, but the government proposes a far looser test (as the government does), requiring compulsion by outright threats or inducements.


Cato joined Netchoice’s amicus brief arguing that when the government improperly coerces third parties into infringing First Amendment rights, those companies themselves suffer a First Amendment violation and redress must be directed towards the government, not the companies. The point is: don’t get it twisted. We might agree that a wrong has happened, but you should sue the government, not the companies, for its inappropriate coercion.


Later on Monday, the Court will hear NRA v. Vullo, which asks similar questions related to what happens when the government uses threats of sanctions and other intimidation tactics to get third parties to do its bidding. Here, the National Rifle Association contends that the Superintendent of the New York Department of Financial Services used thinly veiled threats to pressure banks and insurance companies to quit doing business with the NRA due to the latter’s viewpoint. The Second Circuit ruled that such coercion was acceptable. Now the Supreme Court has to figure out what qualifies as legitimate government speech or police power and what constitutes improper coercion.



Once again, Cato joined an amicus brief (this time written by the Goldwater Institute) arguing that whatever test the Court develops, it must accommodate the fact that the regulatory state is ripe for abuse and in fact, ideologically motivated coercion under the guise of regulation is on the rise.


On Tuesday, in Diaz v. US, the Court will first consider the ability of experts to testify that purportedly “blind mules” are not blind at all. For some background, blind mules are people who traffic drugs without knowing it. The defendant in the case, Diaz, was found crossing the border with 2 kilograms of meth hiding in her car. She testified that the vehicle belonged to her boyfriend and she had no idea about its contents. The government then called a Homeland Security agent as a witness to testify that couriers more often than not know exactly what they are doing, especially because traffickers don’t want to take the risk of putting all of their goods in the basket of someone who doesn’t even know. The jury found the “blind mule” guilty and she was sentenced to 7 years in jail.


She appealed, arguing that the Federal Rules of Evidence prevent witnesses from “stat[ing] an opinion” about whether someone had a mental state or condition relevant to a criminal charge. The Ninth Circuit rejected her argument on the basis that witnesses can express general opinions; they merely cannot express opinions about a particular defendant’s mental state (pedanticism always seems to weigh in favor of the government, doesn’t it?).


Later that same day, the Court will consider Truck Insurance v. Kaiser Gypsum, a bankruptcy case (the petitioner, Truck Insurance Exchange, is represented by Allyson Ho, whom we profiled here). The case asks whether an insurer for a bankruptcy claim is a “party in interest” such that it may object to a Chapter 11 bankruptcy plan of reorganization. Hey, the Court needs a respite from constitutional crises sometimes!


On Wednesday, in Gonzalez v. Trevino, the Court will consider a fascinating set of facts and arguments being made by our friends at the Institute for Justice about retalitatory arrest. In this case, a group of city officials colluded to arrest a 72 year old woman for trying to bring some harsh truth about the city’s roads. She organized a petition criticizing a city manager and accidentally placed it in her binder, subjecting her to arrest for “tampering with a government record.” She argues that the arrest was retaliatory. Under the Nieves Standard for retaliatory arrest, plaintiffs must first demonstrate there was no probable cause to make the arrest. If they can’t do so, they must present evidence that they were arrested even when other people doing the same things were not. The question presented is whether parties can introduce evidence other than that objective evidence to show that the arrest was retaliatory.


Last, the Court will hear Texas v. New Mexico and Colorado, involving the proper disposition of the Rio Grande River.


It's a big week full of interesting cases (but isn't it always?). I’ll be back later this week with a full recap.

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