Legal foundation. The foundation for individual rights and expression. Id like to welcome you to this Years Supreme Court preview discussion and also welcome to our viewers on cspan. The courts term begins on monday of next week, although this morning we got the surprise of several grants and new cases at that theyre going to hear and its shaping up to be an exciting term. Theres a little bit of something for everyone. Free speech, guns, taxes, and of course, overreach by administrative agencies. We have a lot of ground to cover and only about an hour to do soso im going to jump right into brief introductions of our distinguished panel. John elwood is a partner at arnold and poller where he heads up to the Supreme Court cases. Hes argued 10 cases before the Supreme Court and appeared before nearly every federal Appeals Court in the country. And john writes, the popular relist watch for scotus blog. I hope youll bring back the relist carols this holiday season. And a National Writer on National Review online and National Review institute. A recovered litigator dans writing on politics, law and baseball has appeared in a variety of outlet. Dan is a long suffering mets fan, and perhaps during q a we can ask for your world series predictions and last but not least, an attorney and vicepresident of litigation for the foundation or individual rights and expressions. Before joining fire, she spent more than 10 years litigating cutting edge constitutional cases with the institute for justice. Such a lover of the constitution that she had her wedding reception at the National Constitution center. So 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 its upcoming term, states regulating social media companies. Thats right, both of the cases the future is high on the future of internet freedom. These are, i would argue, the most important cases on the internet than two decades ago. These laws concern or the cases concern two laws, one in texas and one in florida that regulate the major social media platforms. So facebook, youtube, x, the platform formerly known as twitter, and both laws differ in some ways, but overall, they do two things. First, they restrict the ability of platforms to engage in what is known as content moderation, so thats basically the platforms ability to make editorial choices about removing, editing, arranging, or even prioritizing user generated content. And the second they think both of the laws do, noted requirement. For example, the laws require that every instance of content moderation must be addressed and explained on an individual basis. So individualized explanations for any instance of content moderation. Now, its not so much a surprise that the Supreme Court took up these cases. The United States had asked the court to take up both cases and resolve at least some of the questions presented and today, the Court Granted on those two questions, one, whether the content moderation restrictions violate the First Amendment, and two, whether the notice and Disclosure Requirements vee late the First Amendment. So, to go into the 11th circuit, okay, great. So, as i mentioned the florida case, the 11th circuit decided that, well, first the District Court enjoined the law saying it was likely going to violate the First Amendment because it discriminates on the content, the viewpoint and the speaker and the great line, the district of course, says its not narrowly tailored and then failed scrutiny because its an instance of burning down the house to roast a pig. And the 11th circuit found that that was largely right, that basically the First Amendment protects platforms moderation decisions, because a private entitys decision, thats the key here. These are private entities decisions about whether, to what extent and in what manner they disseminate Third Party Content to the public are editorial decisions that are protected by the First Amendment and theres longstanding Supreme Court precedent on this, going back to newspapers with the miami herald case that establishes that the right of publishers to exercise editorial judgment and deciding which to showcase on their own newspaper is protected by the First Amendment. Unfortunately, the 11th circuit reversed as to the laws Disclosure Requirements ruling that theyre purely factual disclosures that pass muster under the Supreme Courts test for compelled commercial disclosures and i think thats the key there, which is maybe get to later on why i disagree with that. The second case comes out of texas and the fifth circuit reached an opposite conclusion, basically the District Court enjoined the law, but that decision was stayed pending appeal to the fifth circuit and may be in a little bit of a hint that well see from the Supreme Court, the Supreme Court vacated that stay. Then the fifth circuit and a divided panel reversed and ruled that the content moderation is not speech, but conduct and thats essentially censorship thats not speech and therefore, not protected by the First Amendment. And that even if these moderation decisions are speech, the prohibition would satisfy with the intermediate scrutiny. It was a panel that the judge disagreed, but the fifth circuit did declare that the provisions were socially valid. Thats interesting to watch what happens with the Supreme Court. Any predictions . Well, im hopeful that the 11th circuit ruling will be uphell that these are, these regulations implicate the First Amendment rights of the social media platforms, theyre private entities and im hopeful that the Supreme Court will recognize were not talking commercial speech here. Theres no commercial transaction, when youre looking at the requirements and the disclosure provisions theyre applying the wrong test here. Think about it, if every time a social media platform decided to take down a message or take down a post, they had to provide an individualized explanation why they were doing it, im not so sure how much theyd be able to do. Lets turn to the United States versus, in the first case and theyll deal with the text amendment concerning the Second Amendment. Gun violence is no laughing matter, but i found this detail from the Lower Court Opinion kind of entertaining. One of the various incidents that led to mr. Rahinis indictment, involved him shooting fires into the air at whataburger when his friends credit card was denied. Ive got the tricornered hat. This is the fourth major Second Amendment case that the court has heard now in the past decade and a half. In heller, the court decided that there was an individual right protected by the Second Amendment and gave a little bit of a look at what kinds of guns or covered by that by saying that handguns for protection are covered. In mcdonald, the court said that the Second Amendment is, in fact, incorporated against the state, which is not an issue in rahini. Thats a federal law case which has an interesting consequence because one of the issues that Justice Barrett noted that wasnt quite hasnt been quite settled is when you look at the original meaning and intent of the Second Amendment, you look only at 1791 or do you look at the time of the adoption of the 14th amendment, but the 14th amendment, the 1860s, thats not relevant in rahini because its a federal law case. In the 2022 decision in bruin, the court then moved on to from keeping arms to bearing arms and it 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, keep or bear arms . In this case, it may be just as much a due process case as a gun case. 18usc922g8 basically says that it criminalizes having a gun if you are subject to an order of protection for Domestic Violence so long as that order was subject was made after notice and opportunity to be heard and that the court found either a credible threat presented by the defendant or issued a prohibition of the use of force. Now, in this case, the court may not reach that second and somewhat vaguer part b because the order, which applied to him for a twoyear period, was, in fact, supported by both findings. But the real kind of founding era issue, because of the fact that, you know, under bruin, what the courts are asked to do is to find not exactly an exact twin, but analog in some sort of gun regulation in a founding era. Whats controversial in rahimi, subject to the Domestic Violence order without a criminal process, clearly a criminal proceeding. And judge in concurrence in the 5th circuit warned that these are often done at a boiler plate level. Often no incentive for judges to deny orders of protection, sometimes in divorce cases they will routinely order a twoway restraining order against both parties even if theres not really anything in the way of evidence that one of them is a danger. Now, here, rahini is unusually sympathetic facts, guy two year 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 a fiveweek period. To the extent that there is, i think, a founding era analog, probably the closest thing the government is able to point to is surety laws under which ooh individual could be required to put up a surety if they were found to be a threat to some particular individual and that was a civil proceeding, but because of the fact that the founding era, normally you would be stripped of your right to bear arms only after a felony conviction, you know, its a little bit tricky, but its going to be interesting to see because i think probably it puts this is about as sympathetic as the court is going to get case for upholding these kind of laws and theres a whole bunch of them in the federal criminal code. Yeah, and one sort of interesting thing about comparing it to the surety laws, that didnt actually take away possession. You just had to put up a bond and then you could possess your firearms. Unless you couldnt put up the bond, then you lost. Any prediction how it might turn out in the court . I have a feeling that Justice Roberts and kavanaugh is going to be uncomfortable where the 5th circuit went. The question is who else goes with them. Yeah, Justice Kavanaugh had a concurrence joined in bruin, were not talking about longstanding, you know, bans on peoples mental illness, felons, bans on carrying to secure places, sensitive places so they might be the two to watch in particular. Lets turn next to, john, a trio of Administrative State cases and these are near and dear to my heart. So the court will hear a case involving the Consumer FinancialProtection Bureaus unique funding mechanism. So, instead of going hat in hand to Congress Like every other executive agency and department, the cfpd gets to tell the fed how much money it wants and the fed has to turn it over. And the other challenges the Enforcement Actions for security fraud in its own own inhouse, what you might call inhouse kangaroo course instead of before an independent article three judge and then finally the big kahuna for the term from my perspective, asking the justices to overturn the wrong handed chevron document, requires judges to refer to agencies about the meaning of ambiguous texts and that would be the biggest, the federal government. Tell us about the trio. Its an exciting time because i think were on the cusp on a sea change of Administrative Law and we are in the midst on separation of powers document. On Administrative Law, when i graduated from law school in the last century, we will say, there were two fundamental principles of Administrative Law, first, chevron was fundamental law and was firmly established and secondly, nondelegation doctrine was useful only as a but for legal jokes and those may be switched in the next five years, one as early as next year. The separation of powers thing, its never really gone 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 theres a growing feeling that insulating from political pressure is another way of saying reducing accountability and so, the members of the court are at least skeptical and wanted to take a hard look at efforts to insulating from political pressures, actually to take some outside of the congressional design. Because a lot of political pressures are baked into the constitution. First, chevron, the third most cited case ever. And i know that some people will stop hearing me now because youre going to be thinking about what could be possibly cited more, its actually qualified immunity is one of them, but i couldnt tell you what the other one is. As elizabeth was intimated, you know, some people have some of the conservatives on the court have criticized chevron doctrine both for outsourcing construction and second will i putting a thumb on the scale when theyre supposed to be holding the balance true between both litigants. In recent years, the Supreme Court has basically avoided using it. Basically wringing every bit of interpretive guidance out of the session itself and by basically saying, chevron isnt applicable to certain instances because of the major questions doctrine you would think that congress wouldnt want to leave Big Decisions up to the agency. As a consequence, the last time the Supreme Court really has, you know, employed chevron, i believe, was 2016 so its been a while. Next term the Supreme Court will have a case before asking them explicitly to overrule chevron. And the case involved a challenge by companies to rule issued by the National MarineFishery Service that requires fishermen for me, an untasty fish, the herring, to pay for the cost of federal observers who monitor compliance with fishery monitoring plans, this is not nothing, sometimes can be 20 of the catch. And relying on chevron, that was a reasonable interpretation of the statute. Even though well, the statute does say they can monitor to be present, thats not nothing. A couple other places in the statute they explicitly say that fishermen have to pay for that and they dont in the part of the statute that applies to herring fishermen. And so, theres already, theres kind after negative pregnant argument there, but they won in the d. C. Circuit which is not afraid to ally chevron unlike the Supreme Court, or not reluctant to asupply chevron. The fisheries asked two questions, whether this was the proper application, or chevron should be overruled, im going to read this. At least the courts should look at statutory powers does not constitute an ambiguity in reference to the agency. The court only granted on the second question, kind of made the case a blockbuster. Only interested in overruling chevron or limiting it. Most of the attention and the briefing has been focused on the big ticket question whether to overrule chevron rather than to limit it. Bright, by the solicitor general gives a full throated argument saying that chevron deference is historical, inconsistent with the administrative procedure act and has a pernicious effect system wide in that people no longer tried to sort out, no longer tried to compromise in congress because they figure half the time their party is going to be in power and they can get their way through the executive branch and its kind of broken the political system. And he argues that chevron isnt entitled because it is designed to not engender reliance because its supposed to make it so you can change the interpretation recently and this thing, you know, like i always think of the line from Yellow Submarine seas of green when i think about the amicus brief in cases like this because theres already 50 amicus briefs filed just on the top right side. And im sure there will be similar numbers on the other side. And it will be interesting to see whether they go for the big question. But there is this off ramp, whether they just decide to limit chevron further. And i think that there is a lot of reason to believe that they might do that. A few years ago, the court was asked to overrule our difference, which is basically applies the same principle, but to an agencys interpretation of its own regulation, instead of overruling it outright, they winnowed it down to virtually nothing, or winnowed it down substanti