The host of this hourlong conversation. We are going to go ahead and get started. Perfect timing. Good afternoon. Im elizabeth on behalf of Pacific Legal foundation and our partners and the foundation for individual rights. Id like to welcome you to this Years Supreme Court preview discussion and also welcome to our viewers on cspan. The Court Term Begins on monday of next week. This morning, we got a surprise of several grants and new cases we are going to hear in what is shaping up to be an exciting term. Next is dan mcglocklin, a Senior Writer online and the National ReallyNational Review institute. Writing on politics, law and baseball has appeared in a variety of outlets. Dan is a longsuffering mets fan so perhaps you are tuning in now for your world series predictions. And last but not least, an attorney of litigation for the foundation for individual rights. Before joining, she spent more than 10 years litigating cases with the institute. She is such a lover of the constitution that she had her wedding reception at the National Constitution center area of with that, id like to start with you. The big news of the day is that the Supreme Court is going to hear two cases in this upcoming term involving state efforts to regulate social media companies. Thats right, and both of these cases involve the future of internet freedom. And even, i would argue, the most important cases on the internet since about two decades ago when the Supreme Court tried. These cases concern two laws, one in texas and one in florida for major social media platforms. Facebook, youtube, x deplatform formerly known as twitter in both laws differ in some ways, but overall they do two things. First, they restrict platforms to content moderation. That is the platform ability to make editorial spaces about removing it, editing, or even prioritizing usergenerated content. The second thing they do is impose disclosure and notice requirements. For example, these laws require that every instance of content moderation must be addressed and explained on individual basis. Individualized explanations for any form of content moderation. Now, its not a surprise that the Supreme Court picked up these cases. The United States asked the court to take up of cases and today, whether the content moderation restrictions violate the First Amendment and two, whether the disclosure requirement violate the First Amendment. As i mentioned, before the case, the 11th circuit decided that in joining the law and it would likely violate the First Amendment because it discriminates based on the content, viewpoint and the speaker. In the great line, it is an instance of burning down the house. The 11th circuit found that that was largely right, but basically the First Amendment text platform moderation decisions because a private entity decision and that is what this is, private entity decisions about whether a website and in what manner can they disseminate thirdparty content of the public are editorial decisions that are protected by the First Amendment, and then longstanding Supreme Court precedent going back to the miami herald case. That establishes that the right of publishers to exercise editorial judgment in deciding their own newspaper is protected by the First Amendment. Unfortunately, the 11th circuit reversed ruling that the purely factual disclosures that happened under the Supreme Court were compelled commercial disclosures. And i think that is the key we will get to later on why i disagree with that. The second case is texas and the fifth circuit reaching opposite conclusions. Basically the district enjoying the law, but that decision was stayed pending appeal, and maybe a little bit of a hint of what we will see from the Supreme Court, they vacated that state. Then a divided panel reversed and ruled that the content moderation is not speech, but conduct and censorship that is not protected by the First Amendment, in that even if these moderation decisions are speech, it would be immediate scrutiny. The fifth circuit did also declared of the disclosure provision would also be valid. That will be interesting to watch what happens with the Supreme Court. Im hopeful that the 11th circuit ruling will acknowledge these replications implicate First Amendment rights of these platforms as private entities, and im hopeful the Supreme Court will recognize that we are not talking about commercial speech. Theres no commercial transaction. When you are looking at these notice requirements and these disclosure decisions, every time a social media platforms set it to take and message were taken on a post, and had to provide an individualized explanation of why they were doing that. Im not sure how much they would be able to do. The first case in which the justices grapple with the new standard concerning. Then violence is no laughing matter at the Lower Court Opinion kind of entertaining. One of the incidents that led to the indictment was involving firing shots into the air at a whataburger after his friends debit card was declined. Ive got the real tricornered hat feet today. This is the fourth major Second Amendment case that has been heard now in the past decade. The court decided that there was an individual right protected by the Second Amendment and gave a little bit of what kinds of guns are covered by that by saying handguns for protection are covered. In mcdonalds, the court said that the Second Amendment is in fact incorporated against the state. Which is not an issue. The federal law case has an interesting consequence because one of the issues that Justice Barrett noted that hasnt been quite settled is when you look at the original meaning and intent of the Second Amendment, people look only at 1791 or do you look at the time of the adoption of the 14th amendment, but the 14th amendment in 1860, that is not relevant because it is a federal law case. In the 2022 decision, the court then moved on from keeping arms to bearing arms and ruled that there was a right to carry arms in public. What we are now dealing with is the question of gun regulation. Once youve established all of those guardrails, when can the government decide that someone cannot carry a gun, in this case, it is as much a due process case as a gun case. It basically criminalizes having a gun if you are subject to an order of protection for Domestic Violence, so long as that is made after an opportunity to be heard and that the court found either a credible threat presented by the defendant, or issued a prohibition of views forced. In this case, the court may not reach that second and somewhat vaguer part because the order which applied to him for two years was in fact supported by both findings. But the real founding era issue because of the fact that under brewing what the court asked to do was to find some sort of gun regulation from the founding era. What is controversial is the fact that brett heaney was subject to a Domestic Violence order with purely a civil proceeding. The judge in concurrence in the fifth circuit warned that these sorts of things are often done at a boilerplate level with no incentive for judges to deny orders of protection in divorce cases. They routinely issue a to a restraining order against both parties given that there is not the anything in the way that one of them is a danger. You have a guy who was subject to a twoyear order of protection for threatening his girlfriend. He threatened to shoot her, he shot at a witness allegedly and then was finally pulled in by the police after five separate shooting incidents in five weeks. To the extent that there is, i think, a founding era analyte, the closest thing the government is able to point to our surety laws which exist at the individual could be required to put up a surety if they were found to be a threat to some particular individual. Normally, you would be stripped of your rights to bear arms, only after a felony conviction. It is a little bit tricky. But its going to be interesting to see because i think probably it is about as sympathetic as the court is going to get, a case for upholding these kind of laws, and theres a whole bunch of them in the federal criminal probe. An interesting thing about those laws is that they didnt actually take away possession. Unless you couldnt put up the bond, then you lost. Any predictions for how this is going to turn out . I have a feeling that justices roberts and cavanaugh are going to be pretty uncomfortable with a first fifth circuit win. The question is going to be who else . Justice kavanaugh had a concurrence that we are not talking about longstanding bans on mental illness, secure places, sensitive places. They might be the two to watch for. Lets turn back to the trio, near and dear to my heart. The court will hear the case involving the Consumer FinancialProtection Bureau unique funding mechanisms. The cfpb just gets to tell the fed, and the fed has to handed over. Another case challenge of the security of an Exchange Commission to force actions for securities fraud and what you might call inhouse kangaroo court. Instead of an independent article three judge. There is a case asking the justices to overturn which requires them to defer to agencies about the meaning of ambiguous tax, which is just a fancy way of saying they have to put a thumb on the scale for the most powerful government in the country. Tell us about the trio. It is exciting because i do think that we are on the cusp of a change in Administrative Law, and in the midst of a shift. When i graduate from law school, in the last century, we will say, there were two fundamental principles of administered of law. First was fundamental law, firmly established. And secondly, useful only as the blood of legal jokes. Butt of legal jokes. Separation of powers never really got out of fashion, but in the old days, the court was much more sympathetic to the idea that congress could try to insulate an agency from political pressures. In the last few years, there is a growing feeling that political pressure is another way of reducing accountability, so members are at least skeptical and want to take political pressure is another way of reducing a hard look at efforts to insulate an agency from the congressional design while political pressures to the constitution. So first, chevron, the third mostcited case ever and i know that many people will stop hearing me now because youre going to think about what with the policy for, and qualified immunity is one of them. As elizabeth has intimated, some of the conservatives of the court have criticized them both for outsourcing and for putting a thumb on the scale when they are supposed to be holding the balance true between both litigants. In recent years the Supreme Court has basically avoided using it. Basically saying chevron is impeccable in certain instances because of things like the major question doctrine. As a consequence, the last time the Supreme Court really has employed chevron was 2016, so it has been a while. Before asking them explicitly to overrule chevron, the case involves a challenge, a rule issued by the National MarineFisheries Service who requires fishermen to pay for the cost of federal observers. And this is not nothing, it can be sometimes up to 20 of a catch. And relying on chevron, the d. C. Circuits said that that was a reasonable interpretation of the statute, even though the statute does say it requires monitors to be present and uncrowded fishing ships, that is not so. But they dont and the part of the statute that applies to herring fishermen. Already there is a negative argument there. The d. C. Circuit judge not afraid to apply chevron unlike the Supreme Court. The Fishing Companies come to the Supreme Court to ask two questions. Whether chevron should be overruled or the court should at least clarify concerning controversial powers, expressly but narrowly granted elsewhere does not constitute ambiguity requirement. The court only granted on the second question which automatically made the case kind of a blockbuster because it shows the interest in overruling chevron. Most of it has been focused on the bigticket question. That has a pernicious effect systemwide in that people no longer try they try to compromise in congress because half the time the party is going to be in power and they can get their way to the executive branch, kind of breaking the political system. He argues that chevron isnt entitled because it is designed to not engender reliance because it is supposed to make it so that you can change the interpretation, and i always think of the line from yellow submarine. As im 50 amicus briefs filed. Im sure there will be similar numbers on the other. And it will be interesting to see, but there is this offramp of whether they decide to just limit chevron further. I think there is a lot of reason to believe they might do that. A few years ago the court was asked to overrule the same principle, but to an agency of its own regulation. And instead of overruling outright, they whittled it down to virtually nothing, or they whittled it down substantially. I queried whether the Supreme Court is going to have much appetite overrule chevron when the cavanaugh cavanaughs and robertses of the world the difference. That brings us to nondelegation preview, which was that it was more or less four justices who more or less said we are interested in revisiting this, in separate opinions in the case, and then Justice Kavanaugh joined the court in an opinion concurring in denial that the gorsuch opinion was great, and an appropriate case. A case out of the fifth circuit involved in administrative proceeding for securities fraud. The challenge and ministered ruling in the fifth circuit, and the fifth circuit invalidated the finding on three grounds. First of all, the Supreme Court merely flirted with reviving that. The nondelegation doctrine because Congress Allowed the fcc the choice whether to prosecute an administrative proceeding for in court, and they said that that violated nondelegation and they didnt give a what is the phrase that you have to say . Intelligible principle. You have to provide an intelligible principle for how to choose between those two. Secondly they concluded that it violated the Fourth Amendment right to jury trial and administratively, and fraud was a common law concept. And third, and violated the separation of powers to have Administrative Law judges who are subject to two levels of removal restrictions because not only was the alj restriction on the move ability, but the fcc chairman had removed them also was subject to restriction and that is two tears of removal restrictions for the loss to be faithfully executed, which the court said two tears of removal restrictions was unlawful and Free Enterprise accounting oversight board. For what its worth, unlike some of the other speakers, i am more willing to venture predictions if you promise to forget then if im wrong. I think there is a fairly weak argument, they dont make a fairly strong case. Legislators in the past have given constitution choices to agencies, although in the past, it has been criminal versus civil. And potentially not a legislative determination, but more of an executive choice. The other part of the argument, the government argued that in the past, when they created public rights, that congress was allowed to condition them in place, basically allowing them to determine interparty review that allows people to challenge patents administratively, which the Supreme Court upheld a few terms ago, but there are other examples they give such as osha violations, irs adjudications, violating immigration laws and so forth. So at least there are other examples for this, and also if you say that you have to bring these things, in court. Otherwise think there are a lot of people who think those are relatively strong claims and there are a lot of people who think this is kind of the strongest claim. Finally, i think there is the most welltrodden path for them to invalidate this, two layered of administrative rulings when the Supreme Court already said you cant do that. The government gamely argued that all of these, this is administrative adjudications. Kind of enforcing the law like a Free Enterprise, and they make a couple other arguments about why this cant be or it remains to be seen whether or not it works. But it is an interesting thing when you think about it. What is the remedy . The Supreme Court is unlikely to say that you need to make the sec chair removable at will. See you in presentable he presumably make a judge removable at will. But if they are removable at will any time that disagrees with the agency, how are you supposed to get a fair adjudication in front of the administered agency . It will be interesting to see