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  • Writer's pictureAnastasia Boden

Keeping up with the Court: 2/26/24

Did anyone else notice how many times Cato’s amicus briefs have been mentioned lately at SCOTUS? Asking for a friend…

What’s happening at the Court this week? A lot!


On Monday, the Court will hear Moody v. Netchoice and Netchoice v. Paxton, two highly anticipated cases coming out of Florida and Texas involving the government's attempt to dictate what speech social media companies allow on their platforms. The states are imposing these mandates, ironically, in the name of free speech.

It's a black fly infringement of liberty in your free speech chardonnay

Based on their perception that social media companies are de-platforming primarily conservative speech, Florida and Texas recently passed laws regulating these companies ability to moderate the content that's put up on their sites. Texas’s law, for example, prohibits social media companies from taking down any content based on its viewpoint. Florida’s law bars social media companies from “deplatforming” political candidates under any circumstances, prioritizing or deprioritizing (also known as shadow-banning) any post or message “by or about” a candidate, and removing anything posted by a "journalistic enterprise" based on its content. It also contains various disclosure provisions, including a requirement that companies disclose their reasoning any time they make certain moderation decisions.

The Fifth Circuit upheld Texas’s law because, in its view, companies do not have a “First Amendment right to censor what people say.” The Eleventh Circuit, by contrast, struck down Florida’s law under the First Amendment. And now the Supreme Court will resolve the split.

The case has far reaching implications, since the law is based at least in part on the idea that social companies have accumulated “monopoly power” that justifies regulation. If that theory is accepted, all sorts of new regulations could be passed when companies become, in the government’s view, too big or too powerful. Thus, the lawsuit has created something of a schism in conservative and libertarian circles, since it invites regulation that would nomrally be opposed by opponents of big government. You can see my colleague Clark Neily debate the inimitable "firehose of ideas" Richard Epstein on the topic at this year's Federalist Society National Lawyers Convention here.

I live in California, which has recently attempted to make social media companies engage in more content moderation, rather than less. It is therefore the inverse of Florida and Texas; it wants companies to take down more people's posts. This fact perfectly illustrates the problem: when you allow the government to dictate speech, it’s not always going to do the kind of dictating that you like.

Full disclosure/shameless plug: Cato submitted an amicus brief in these cases urging the Court to reverse the Fifth Circuit’s opinion. The brief largely discusses the problems of Pruneyard Shopping Center v. Robins, which ruled that states could require shopping mallsa and other public entitites to host other people's speech. In our view, the Court should walk back Pruneyard rather than expand it to new contexts. Whether viewed as a matter of First Amendment rights or property rights, private businesses have an interest in deciding what type of speech they host (the same way that you and I have an interest in deciding who comes to our dinner party or kicking them out if they say something we don't want to tolerate).

Another interesting amicus brief was submitted by employees actually tasked with making content moderation decisions. As they explain in their brief, they often take down some pretty heinous posts, including death threats aimed at the justices themselves. If Florida's and Texas's laws are upheld, they won't be able to do that. They also note that in many cases, free expression requires heavy moderation so that SPAMmers, trolls, and others are weeded out and others can be functionally heard. It's particularly clever since it not only uses real examples from Twitter and other websites to demonstrate the value of moderation, it uses tweets directed specifically at the Court.

In FL's or TX's world, moderators could not take this comment down.



On Tuesday the Court will hear McIntosh v. United States and Cantero v. Bank of America.

McIntosh concerns the government's perpetual abuse of rules during litigation. While McIntosh was being prosecuted for robbery, the government made vague allusions to forfeiture but never actually pursued it. In fact, the first McIntosh ever heard anything about forfeiture was at sentencing. Just as the district court was about to sentence him, the government informed the district court that, in addition to a $75,000 restitution order, it was asking for a $75,000 forfeiture money judgment as well as forfeiture of McIntosh's BMW, which was allegedly purchased with proceeds from a prior robbery.

The district court then ordered the government to submit a forfeiture order within a week, but it never did so. McIntosh argued that the government therefore lost its right to seek forfeiture because it failed to timely comply with Rule 32.2, which lays out the required notice for forfeiture. The government's mistake, he said, cost him thousands, because the car's value (which was to be credited against any monetary judgment) had continuously eroded over the years. The district court and court of appeals disagreed, calling the rule a mere “time related directive,” meaning it was a rule that could be violated without consequence (not really much of a rule, amirite?)

This is (yet another) one of those cases where one imagines that if was one of us mere civilians breaking the rules rather than the government, we’d pay dearly. But when it’s the government who breaks the rule, they try to say the rule was just a suggestion.

After McIntosh, the government will consider whether the National Bank Act preempts a state law requiring mortgage lenders to offer a minimum interest rate on escrow accounts, such that the law cannot be applied to national banks. Despite all of the possible analogies to Marbury v. Madison, I’m going to leave it at that.


Wednesday morning the Court will hear Garland v. Cargill, which asks whether a bump stock device is a “machine gun” under federal law.

Since 1986, Congress has prohibited the transfer or possession of any new “machinegun,” which the National Firearms Act defines as any weapon which "shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.” But in addition to weapons themselves, the statute also includes “any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun.”

For some context: a “bump stock” allows users to alter their guns so that they spit out hundreds of shots per minute. After the horrific mass shooting in Las Vegas was carried out using bump stocks, the Bureau of Alcohol, Tobacco, Firearms and Explosives deviated from its prior rules interpreted the relevant statute as encompassing bump stocks. The Fifth Circuit held that the statutory definition of “machinegun” does not include bump stocks, and so the ATF's rule was invalid. But there's a circuit split on the issue, and now the Court has agreed to resolve it.

That argument will be followed by Coinbase, Inc. v. Suski, which is back at the Court for a second time. In Coinbase, Inc. v. Bielski, the Supreme Court ruled that a district court must stay its proceedings while a party is appealling a denial of a motion to compel arbitration. Suski involves the appeal referenced in that case. And it asks whether, when parties enter into an arbitration agreement with a delegation clause that delegates certain decisions to an arbitrator, an arbitrator or a court is the proper party to decide whether that arbitration agreement is narrowed by a later contract.


Looking forward to seeing the Court discuss Dogecoin, the digital currency that started the whole case.

I'll be back at the end of the week with a recap of the arguments, per usual. In the meanwhile, enoy this article summarizing some recent remarks about collegiality from two very important SCOTUS ladies you may have heard of before....


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