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Meta Social Media Addiction Trial · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 2: It's the very definition of a high stakes trial. Dozens
0:13
Speaker 2: of state attorneys general are suing Meta, claiming it uses
0:17
Speaker 2: unprecedented technology to entice, engage, and ensnare teenagers and children,
0:24
Speaker 2: harming their mental health. At stake a damages claim of
0:28
Speaker 2: one point four trillion dollars, very close to the social
0:33
Speaker 2: media giant's market cap, plus the imposition of fundamental structural
0:39
Speaker 2: changes to the platform. The trial is the latest in
0:42
Speaker 2: an avalanche of lawsuits against Meta and other social media companies,
0:47
Speaker 2: including Google's YouTube, TikTok and snap overclaims their platforms harm
0:53
Speaker 2: young people, illegally collect their data, and are deliberately designed
0:58
Speaker 2: to addict them. My guest is an expert in internet law,
1:03
Speaker 2: Eric Goldman, a professor at Santa Clara University School of
1:07
Speaker 2: Law and co director of the High Tech Law Institute. Eric,
1:11
Speaker 2: this is a very high stakes trial. Tell us what's
1:14
Speaker 2: at stake here?
1:16
Speaker 1: In this trial, the state attorneys general are pursuing the
1:19
Speaker 1: social media defendants for a number of claims, including claiming
1:23
Speaker 1: that they are a public nuisance. The state attorneys general
1:26
Speaker 1: have asked for one point four trillion dollars worth of damages, which,
1:31
Speaker 1: if issued, would represent a major chunk of the overall
1:36
Speaker 1: value that those entities are worth. The case also potentially
1:41
Speaker 1: puts in play structural remedies that would change how social
1:45
Speaker 1: media services operate. So between the damages of words and
1:51
Speaker 1: the possibility of structural reform, it's possible that these cases
1:55
Speaker 1: will change social media structurally.
1:58
Speaker 2: The State Attorney's General law saying that Meta designed the
2:02
Speaker 2: platforms to get children and teenagers hooked, tell us more
2:07
Speaker 2: about the allegations here.
2:09
Speaker 1: There's a lot of allegations, so it's a little hard
2:11
Speaker 1: to summarize. You hinted at one of them. The State
2:14
Speaker 1: of the Attorneys General are arguing that social media services
2:17
Speaker 1: were designed to be addictive, in fact addicted the users,
2:20
Speaker 1: and that addiction caused harm. They've also claimed, for example,
2:24
Speaker 1: that the social media services knew about that addictive attributes
2:29
Speaker 1: and harm and failed to disclose it to the public,
2:32
Speaker 1: and they're also claiming that the consequences of this addiction
2:37
Speaker 1: are harming society generally.
2:39
Speaker 2: Obviously, Meta denies the allegations. What specifically has it said, And.
2:43
Speaker 1: I just want to point out that you keep using
2:46
Speaker 1: term meta there are multiple social media services in play here,
2:49
Speaker 1: so just want to be clear about that. The social
2:52
Speaker 1: media defendives are depending on a wide range of grounds.
2:55
Speaker 1: They're depending on the position that this aims that are
3:00
Speaker 1: being advanced against them simply don't fit the facts. What
3:05
Speaker 1: the social media services have done is not illegal, and
3:09
Speaker 1: therefore there should be no remedy for it. They have
3:12
Speaker 1: argued that the First Amendment applies to their decisions. That
3:15
Speaker 1: they're acting like publishers, making editorial decisions and basing liability
3:21
Speaker 1: on those editorial decisions is in consists of the First Amendment,
3:24
Speaker 1: and they're claiming that Section two thirty applies. Section two
3:28
Speaker 1: there says websites are liable for third party content, and
3:31
Speaker 1: a lot of the arguments about addiction are ultimately about
3:35
Speaker 1: the delivery of third party content, and therefore the social
3:39
Speaker 1: media defendants argue that Section two thirty should preempt those claims.
3:43
Speaker 2: So I hear seven weeks of trial, how do the
3:46
Speaker 2: state ags go about trying to prove their claim A
3:51
Speaker 2: we're going to hear from individual teenagers or are we
3:54
Speaker 2: going to hear from experts in social media? I mean,
3:58
Speaker 2: what kind of witnesses will they use?
4:00
Speaker 1: I think that they all use a variety of different
4:03
Speaker 1: experts who will try to bolst the argument that the
4:07
Speaker 1: social media services engaged in addictive practices and in fact
4:13
Speaker 1: caused harm. Both of those propositions are not scientifically established.
4:19
Speaker 1: The state ags will have to make a case for them.
4:22
Speaker 1: I would assume that we will hear from individual victims.
4:26
Speaker 1: We might also hear from former company employees who have
4:29
Speaker 1: inside information, and maybe others.
4:33
Speaker 2: So far, it seems like Meta hasn't fared well before juries.
4:37
Speaker 2: You had the case that we talked about before, where
4:41
Speaker 2: Los Angeles in state court a jury awarded a woman
4:44
Speaker 2: six million dollars in a case involving claims at Meta
4:49
Speaker 2: and Google's YouTube costs or anxiety and depression. And then
4:51
Speaker 2: we had this new Mexico jury, which, deliberating less than
4:56
Speaker 2: a day, awarded three hundred and seventy five million dollars
4:59
Speaker 2: in civil penalties, and then last week the judge added
5:02
Speaker 2: on additional five hundred and sixty seven million. Is Meta
5:07
Speaker 2: on the losing end. So far, of all these trials.
5:11
Speaker 1: The cases are not going well for Meta, or for
5:13
Speaker 1: that matter, for other social media defendants. The judges and
5:17
Speaker 1: the juries have generally looked disfavorably on the arguments that
5:21
Speaker 1: they're making. However, these cases are all going to go
5:25
Speaker 1: up on appeal, and there's no reason to believe that
5:29
Speaker 1: the jury or judge verdicts are going to survive intact.
5:34
Speaker 1: There are a number of good arguments that the defendants
5:37
Speaker 1: will make on appeal, and if they can succeed on
5:40
Speaker 1: any one of those arguments, it's possible that some or
5:43
Speaker 1: all of the lower court rulings will be undone. So
5:47
Speaker 1: I haven't put a lot of stock in where we
5:49
Speaker 1: stand today. Other than a data points. The juries are
5:53
Speaker 1: sending a message that they do hold social media services
5:57
Speaker 1: culpable for harming their users. Whether or not the law
6:02
Speaker 1: recognizes that harm and upholds the legal consequences that have
6:06
Speaker 1: been signed to it remains to be seen on appeal.
6:09
Speaker 2: Is the strongest argument on appeal that the social media
6:13
Speaker 2: platforms have had immunity from prosecution over the content that
6:18
Speaker 2: users post, and states are trying to sidestep that by
6:22
Speaker 2: going after the product design features.
6:24
Speaker 1: I think there are several strong arguments that will be
6:27
Speaker 1: advanced on appeal and this case, and in frankly all
6:31
Speaker 1: of the cases. Section two thirty is one of those.
6:34
Speaker 1: Section two thirty says that the services can't be responsible
6:38
Speaker 1: for their party content and ultimately, given that their basic
6:41
Speaker 1: business is the delivery of their party content, Section two
6:45
Speaker 1: very clearly casts a long shadow. But I think the
6:47
Speaker 1: First Amendment arguments are even more obvious and in some
6:51
Speaker 1: respects even more troubling. In the end, social media services
6:56
Speaker 1: are engaging in publication of content. It's third party content
7:01
Speaker 1: or first party content. The First Amendment applies equally in
7:04
Speaker 1: that circumstance. As a result, to the extent that social
7:08
Speaker 1: media defendants are being held legally liable for their editorial decisions,
7:13
Speaker 1: that sounds like a problem, and that sounds like the
7:15
Speaker 1: kind of thing that an Mpella court won't pay attention to.
7:18
Speaker 2: The damages of one point four trillion dollars. Meta's market
7:23
Speaker 2: cap is one point five trillion. I mean, where does
7:26
Speaker 2: that number come from?
7:28
Speaker 1: The number might have a little bit of fiction to it,
7:32
Speaker 1: It might be a fantasy land computation, but it doesn't
7:36
Speaker 1: really matter if that number is the right number. It
7:40
Speaker 1: really is more the order of magnitude of the state
7:43
Speaker 1: attorney's general position. They are saying that if the social
7:48
Speaker 1: media services are causing as much or more damage as
7:52
Speaker 1: their market cap, they literally shouldn't exist. They're basically trying
7:56
Speaker 1: to drive the value of those companies to your zero.
8:00
Speaker 1: And so that's why I think that the number is
8:03
Speaker 1: so helpful of crystallizing the stakes of this case. It's
8:06
Speaker 1: a reminder that the arguments that state ages are advancing
8:10
Speaker 1: potentially make social media services untenable, not profitable, and maybe
8:16
Speaker 1: no longer a viable market.
8:18
Speaker 2: They're also demanding changes. Besides this staggering sum are the
8:23
Speaker 2: changes to the platforms that the state ages are asking for?
8:28
Speaker 2: Would they change? You know, the very essence of the
8:31
Speaker 2: way these companies social media platforms work.
8:35
Speaker 1: Unquestionably, the structural remus that are being ordered by courts
8:40
Speaker 1: and also mandated by legislatures will change how social media operates.
8:45
Speaker 1: What's less clear today is that they're going to change
8:49
Speaker 1: it in a way that will materially affect our willingness
8:53
Speaker 1: to use them. And I'm going to give you an
8:55
Speaker 1: example because I think it's so helpful. The New Mexico
8:58
Speaker 1: judge said cap on the number of hours that a
9:02
Speaker 1: user could use the service in a month. Now, that
9:05
Speaker 1: cap was pretty generous. That's a lot of hours. I
9:08
Speaker 1: think it was ninety, but imagine that a different judge
9:11
Speaker 1: based on some other assessment of the science, such that
9:14
Speaker 1: any of these decisions are based on that. Besides that
9:16
Speaker 1: the number is much much lower. Let's pick a number
9:19
Speaker 1: for a moment. It says that only five hours a
9:21
Speaker 1: month is permissible. At that point, then many users will
9:25
Speaker 1: no longer be able to engage in the community the
9:28
Speaker 1: way they're currently engaging, and it'll just starve the ecosystem
9:32
Speaker 1: for the engagement that's been driving it. There'll be less
9:35
Speaker 1: people there, they'll be contributing less, there'll be less people
9:38
Speaker 1: to consume it, and as a result, the ecosystem goes
9:41
Speaker 1: into a death spiral. It just can no longer function
9:44
Speaker 1: as the kind of vibrant conversation that we've assumed. Now,
9:48
Speaker 1: I'm just giving you a speculative scenario. I don't know
9:51
Speaker 1: if that stario is going to play out, but it's
9:52
Speaker 1: helpful to show how one small product change ordered by
9:57
Speaker 1: a court or legislature could would easily trigger a downward spiral,
10:03
Speaker 1: and multiply that by the dozens, if not hundreds, of
10:06
Speaker 1: different product changes that courts could issue or that legislatures
10:11
Speaker 1: have already mandated, and we can see that the ecosystem
10:15
Speaker 1: is under extraordinary pressure and may not survive it.
10:18
Speaker 2: So Meta, as we said, broadly denies the allegations. But
10:22
Speaker 2: they also say that social media addiction is not a
10:25
Speaker 2: recognized psychiatric condition.
10:28
Speaker 1: That's correct. There is no medical recognition or psychological recognition
10:34
Speaker 1: of a thing called social media addiction. That argument was
10:38
Speaker 1: in play in the Los Angeles Bell Weather trial, and
10:41
Speaker 1: the jury was convinced enough that something was recognizable sufficient
10:47
Speaker 1: to support the damage as award that they issued. Having
10:50
Speaker 1: said that, it's a reminder that the science here is
10:53
Speaker 1: actually quite contested and may not back up the arguments
10:58
Speaker 1: that the State Attorney's General are making. In other words,
11:01
Speaker 1: their general position in social media is and evil. It
11:04
Speaker 1: just harms people. It's laying waste to people's lives and
11:07
Speaker 1: our communities, and the science just doesn't back that up
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Speaker 1: at all. And so they're having to create a scientific
11:14
Speaker 1: fiction a thing called social medi addiction that's not recognized elsewhere,
11:18
Speaker 1: and then predicating legal consequences on that. That's one of
11:22
Speaker 1: the kinds of things that could also be addressed on appeal.
11:24
Speaker 2: Coming up next on the Bloomberg Law Show, I'll continue
11:26
Speaker 2: this conversation with Professor Eric Goleman of Santa Clara University
11:31
Speaker 2: Law School. The jury's being picked today, but it's only
11:34
Speaker 2: an advisory jury. Will tell you what that means. I'm
11:38
Speaker 2: June Grosso and you're listening to Bloomberg. Jury selection began
11:46
Speaker 2: today in Meta's federal trial overclaims its platforms have harmed
11:51
Speaker 2: youth mental health and also track children in violation of
11:55
Speaker 2: federal law. The trial itself is scheduled to begin next
12:00
Speaker 2: and is expected to last six to eight weeks. Meta
12:03
Speaker 2: faces twenty nine states and the federal multi district lawsuit
12:07
Speaker 2: filed in twenty twenty three, but the Oakland trial will
12:11
Speaker 2: only include the first four states California, Colorado, Kentucky, and
12:16
Speaker 2: New Jersey. I've been talking to Professor Eric Goldman of
12:20
Speaker 2: Santa Clara University Law School and expert in internet law. Eric,
12:25
Speaker 2: when I look at the claims on both sides in
12:28
Speaker 2: these social media addiction trials sort of clinically just on paper,
12:34
Speaker 2: I wonder if these multimillion dollar verdicts are due to
12:38
Speaker 2: a jury sympathizing with these teenagers who are struggling with
12:43
Speaker 2: terrible mental health problems, when on the other side you
12:47
Speaker 2: have these huge social media companies you know, it's just
12:50
Speaker 2: like the sympathy factor of a jury as opposed to
12:53
Speaker 2: if this were maybe a judge trial.
12:57
Speaker 1: Well, two things about that. First, I will remind you
12:59
Speaker 1: that in the Los Angeles Bell Weather trial, the jury
13:03
Speaker 1: was non unanimous. It was a ten to two decision,
13:05
Speaker 1: and that's a sign that not all the jurors are
13:08
Speaker 1: onboard with the arguments that they're hearing, even if they
13:11
Speaker 1: feel extraordinary sympathy towards any particular victim. Now, in the
13:15
Speaker 1: State AG case is starting, the judge is actually going
13:20
Speaker 1: to make all decisions. She's appointed an advisory jury to
13:24
Speaker 1: give her input on certain things, but the judge will
13:27
Speaker 1: make the final call about the arguments. And so it's
13:31
Speaker 1: extent that it's a jury who has their passions inflamed
13:35
Speaker 1: by harmed victim. The State AG case might look different.
13:39
Speaker 1: I will also add in the State AG case, the
13:42
Speaker 1: attorneys general are speaking on behalf of the entire community,
13:46
Speaker 1: which actually waters down the impact of any individual victim's story.
13:51
Speaker 2: This judge, Yvonne Gonzalez Rogers, also used an advisory jury
13:57
Speaker 2: in the Elon Musk sam All trial. It's very rare,
14:02
Speaker 2: and she's using it in this huge case. Are there
14:06
Speaker 2: any problems with using an advisory jury.
14:09
Speaker 1: I must confess I'm not a civil proceduralist, so I
14:11
Speaker 1: don't know what the rules are about advisory juries. I
14:14
Speaker 1: have heard of them before, and I think part of
14:18
Speaker 1: the judge's consideration is the judge doesn't necessarily want to
14:22
Speaker 1: just rely on her own position. She'd like to hear
14:25
Speaker 1: how the community is feeling about the arguments that they're hearing.
14:28
Speaker 1: And that makes sense to me because the cases are
14:31
Speaker 1: really about the social media is impact on the community,
14:35
Speaker 1: and the judge may not even be a heavy social
14:38
Speaker 1: media user, may not have the kinds of experiences that
14:40
Speaker 1: the jury does.
14:41
Speaker 2: There's always a possibility of settlement. Settlement is always a possibility,
14:46
Speaker 2: and Bloomberg Intelligence looking at major big tech settlements in
14:50
Speaker 2: the past decade, like Meta's five billion dollar deal with
14:55
Speaker 2: the FTC and Amazon's two point five billion dollars deal
15:00
Speaker 2: with the FTC, so BI estimates a possible settlement of
15:05
Speaker 2: between four and seven billion dollars in this case. What
15:09
Speaker 2: do you think to be.
15:10
Speaker 1: Honest, I think if Meta, speaking just about Meta, if
15:15
Speaker 1: Meta thought it could settle this case for seven million
15:17
Speaker 1: dollars and avoid all future liability, it'd probably write that
15:21
Speaker 1: check happily. But I don't think those are the right numbers,
15:23
Speaker 1: so it sounds very low. I'm guessing that both the
15:26
Speaker 1: state ags and the other plaintiffs in cling individual plaintiffs
15:30
Speaker 1: have much higher numbers. Of mind. Remember though, in the
15:33
Speaker 1: Bellwether trial, I believe that the one plaintiff in the
15:37
Speaker 1: first bell Weather asked for one hundred billion dollars.
15:40
Speaker 2: She ended up with not that much, though the verdict
15:43
Speaker 2: was six million dollars.
15:45
Speaker 1: Right, So going back to the evaluation, you know, how
15:47
Speaker 1: much is each case worth? And I will note that
15:51
Speaker 1: if there are and we're going to pick a number
15:53
Speaker 1: for a moment, there are three thousand victims who are
15:57
Speaker 1: in either the state or federal casalide cases. If the
16:01
Speaker 1: number three thousand, which might be lot overstated, but work
16:03
Speaker 1: with me. If the number is three thousand victims and
16:06
Speaker 1: each was worth six million dollars, which is the number
16:09
Speaker 1: we got from the first bell windrowal, that's actually closer
16:11
Speaker 1: to twenty billion dollars. That's just for the individual victims,
16:14
Speaker 1: not the state ags, not the Native American tribes. You know,
16:18
Speaker 1: single digit billion number is probably quite low. If the
16:22
Speaker 1: parties are going to settle, but I don't think that
16:24
Speaker 1: they're likely to settle. And there's two reasons why. I'm
16:27
Speaker 1: guessing the social media defendants are hopefully that they can
16:29
Speaker 1: knock out big chunks of the case on appeal. And also,
16:33
Speaker 1: a settlement would need to be global in nature. It
16:36
Speaker 1: would have to deal with all victims who might have
16:40
Speaker 1: a claim, and there's not a clear path by which
16:44
Speaker 1: the social media defendants can put all potential victims into
16:49
Speaker 1: a single settlement, and without a mechanism to do that,
16:53
Speaker 1: I think settlement is actually quite remote.
16:55
Speaker 2: This lawsuit is one of more than three thousand five
17:00
Speaker 2: filed by school districts, individuals, and others in federal court,
17:04
Speaker 2: and then there are a second group of more than
17:07
Speaker 2: three thousand in state court. Historically, is there another kind
17:12
Speaker 2: of mass tort litigation you could compare this to maybe
17:16
Speaker 2: the tobacco litigation.
17:18
Speaker 1: Yeah, we've had other mass tortue claims. Asbestos is one
17:22
Speaker 1: of them, tobacco is another. I don't have an inventory them,
17:26
Speaker 1: but they happen, and they're extraordinarily high stakes for both
17:31
Speaker 1: the plaintiffs and the defendants. The numbers boggle our mind
17:34
Speaker 1: in terms of the amount of wealth that's going to
17:37
Speaker 1: be moved one way or another, and this case fits
17:40
Speaker 1: that model. I don't know that it's going to have
17:43
Speaker 1: the same result. There are some major differences between a
17:46
Speaker 1: mass tort involving a physical product causing that physical injury
17:50
Speaker 1: and a online service causing many intangible injuries. It doesn't
17:55
Speaker 1: quite fit the historical model.
17:57
Speaker 2: What pose is more of a danger to the social
18:00
Speaker 2: media companies? Lawsuits like this, or legislation in the US
18:06
Speaker 2: and worldwide to limit them.
18:09
Speaker 1: I don't rank the dangers and risk I would say
18:13
Speaker 1: look at it more like a portfolio approach. Think about
18:17
Speaker 1: all of the different cases and all of the different
18:20
Speaker 1: legislation as a portfolio of threats, and the question is
18:24
Speaker 1: do the cumulative risks pose danger to the defendants? And
18:29
Speaker 1: the answer in my mind is clearly yes. But I
18:32
Speaker 1: don't know which one of the cases, or which set
18:35
Speaker 1: of the cases, or which one of the laws or
18:38
Speaker 1: set of the laws will pose the greatest threat. But
18:41
Speaker 1: the overall aggregate effect of the cases and the laws
18:45
Speaker 1: poses a major threat to the social media defendants. There
18:49
Speaker 1: one other threat I'm going to mention The investors in
18:52
Speaker 1: these companies are assuming they're going to get market returns
18:55
Speaker 1: or better from their investments, and as the threat grow larger,
19:01
Speaker 1: the investors keep recalculating their valuations. And so another scenario
19:06
Speaker 1: is that the investors are going to put some substantial
19:08
Speaker 1: pressure on the social media defenders to do something, whether
19:12
Speaker 1: that's changed their offerings or settle or both in order
19:15
Speaker 1: to preserve their investment expectations. So the threats are really multitudinous,
19:20
Speaker 1: and it's not just the legal threat.
19:23
Speaker 2: So ten years from now, do you think that the
19:25
Speaker 2: social media landscape will be very different?
19:29
Speaker 1: I don't see how the current social media ecosystem is
19:34
Speaker 1: going to survive in its current form in the next
19:37
Speaker 1: ten years. That strikes me as extremely unlikely because of
19:41
Speaker 1: all the legal threats and other changes in society. I
19:45
Speaker 1: just don't see how that could be possible. The only
19:49
Speaker 1: way it might happen is if the Supreme Court issues
19:53
Speaker 1: a massive ruling that preempts a lot of the cases
19:57
Speaker 1: and the laws such that we have to rethink everything
20:01
Speaker 1: from a legal standpoint. But absent that, I believe that
20:06
Speaker 1: the cumulative fact of the laws and litigation will force
20:09
Speaker 1: social media services change. And I'm concerned about that because
20:13
Speaker 1: it means that where we take it for granted, that
20:16
Speaker 1: today we can talk to each other freely online. I
20:20
Speaker 1: don't know that that's going to be the net outcome
20:23
Speaker 1: when all these changes have taken place. What we are
20:25
Speaker 1: going to see, I think instead is a circumscription of
20:29
Speaker 1: our ability to talk to each other, and in ways
20:31
Speaker 1: I think will make our lives less rich for many people.
20:36
Speaker 2: Eric, do you think that let's take Meta. Do you
20:38
Speaker 2: think that Meta has learned anything from the New Mexico
20:43
Speaker 2: trial and the California trial and it might change its tactics,
20:47
Speaker 2: because I mean, their defenses sound pretty much the same.
20:51
Speaker 1: Meta seems impervious to the feedback that it has been
20:55
Speaker 1: getting for a very long time about the concerns that
20:59
Speaker 1: people with its decision making. It seems to be making
21:03
Speaker 1: the same basic mistakes over and over again, both in
21:07
Speaker 1: terms of how it treats its users and also how
21:10
Speaker 1: it's been approaching the legal risk that it faces. So
21:14
Speaker 1: I don't think Meta is likely to learn any lesson
21:17
Speaker 1: from any particular development. The most likely way that Meta
21:22
Speaker 1: would change its tune is when the investors start putting
21:24
Speaker 1: pressure on it. Meta isn't delivering the kind of equity
21:28
Speaker 1: returns that it's investors respect that will catch their attention.
21:32
Speaker 1: I think everything else is unlikely to change here. They are.
21:36
Speaker 2: Meta always talks about We've done this, We've done that.
21:39
Speaker 2: You know, we listen to your concerns about teenagers. Have
21:43
Speaker 2: they done anything that's really helpful?
21:46
Speaker 1: Oh? No doubt that Meta has taken a number of
21:48
Speaker 1: steps that are designed to improve the experiences for its
21:52
Speaker 1: users and keep them safer. Having said that, Meta has
21:56
Speaker 1: also consistently, if in doubt, shows and options that prioritize
22:02
Speaker 1: user engagement over user health. And that's why I think
22:06
Speaker 1: there are so many disgruntled former Meta employees who are
22:11
Speaker 1: turning into whistleblowers or critics or witnesses against Meta because
22:17
Speaker 1: they feel like they weren't heard when they raised concerns
22:21
Speaker 1: about the effects of decisions on their users.
22:24
Speaker 2: And what are some of the far reaching consequences if
22:28
Speaker 2: the state ags win here.
22:30
Speaker 1: If the state ags prevail in their theories against social
22:35
Speaker 1: media defendants, it is likely, if not inevitable, that they
22:39
Speaker 1: will take those same theories and apply them to other
22:42
Speaker 1: parts of the internet. Other places where we're talking to
22:45
Speaker 1: each other will be put under the same legal microscope
22:49
Speaker 1: that the social media events are facing now. And that's
22:52
Speaker 1: why I view the stakes of the case so highly
22:56
Speaker 1: because not only is social media on trial, but implicitly
23:00
Speaker 1: the entire Internet is on trial. And I do worry
23:03
Speaker 1: that the plaintiffs, whether it's sate ages or school districts
23:08
Speaker 1: or individual victims, will learn the wrong lessons, which is
23:12
Speaker 1: that they can put editorial publishers under their thumb and
23:15
Speaker 1: force them to change how they publish content. If that's
23:18
Speaker 1: a lesson that we take away from those cases, we
23:20
Speaker 1: will all suffer the consequences. The Internet will look radically different.
23:25
Speaker 2: Eric, thanks so much. It's always great to have you
23:27
Speaker 2: on the show. That's Professor Eric Goleman of Santa Clara
23:31
Speaker 2: University Law School. Coming up next. Trump is confirming judges
23:36
Speaker 2: faster than in his first term. I'm June Grosso and
23:39
Speaker 2: you're listening to Bloomberg. Fifty three federal judges have been
23:46
Speaker 2: confirmed so far during President Trump's second term. That compares
23:52
Speaker 2: with fifty one at the same point in his first term.
23:55
Speaker 2: The Republicans accelerated judicial confirmations this summer, moving more nominees
24:01
Speaker 2: in June and July than in the first five months
24:04
Speaker 2: of the year. But now they'll have limited time to
24:07
Speaker 2: process nominees after they returned from recess. Joining me is
24:11
Speaker 2: an expert in the federal judiciary. Carl Tobias, a professor
24:15
Speaker 2: at the University of Richmond Law School. Carl, during Trump's
24:19
Speaker 2: first term, we talked about the backlog of judicial vacancies
24:24
Speaker 2: he inherited and how fast they were moving. How are
24:27
Speaker 2: they able to move even faster in this second term.
24:30
Speaker 3: Well, because they have been confirming him at a pretty
24:35
Speaker 3: quick pace. Grassley has been very aggressive about just setting
24:41
Speaker 3: the committee meetings and hearings and then moving them onto
24:48
Speaker 3: the floor with what he has. But at this point,
24:52
Speaker 3: there are hardly any left where there is a nominee
24:57
Speaker 3: who has not been through the p okay, and so
25:03
Speaker 3: the hold up has been in the White House, and
25:07
Speaker 3: so that's what we're going to see. And then into
25:09
Speaker 3: the rest of the term, there just aren't that many
25:14
Speaker 3: vacancies that are going to be available because judges are
25:18
Speaker 3: not taking senior status, and so that's what you're seeing.
25:22
Speaker 3: Grassley and the Senate have done almost everything they could do.
25:27
Speaker 3: There are only a few people who have been waiting
25:32
Speaker 3: for their final votes right now.
25:35
Speaker 2: Do you know how many appointments there have been to
25:38
Speaker 2: the circuit courts?
25:40
Speaker 3: Yes? Ten, ten, confirmed, and then there's one the ten
25:46
Speaker 3: circuit nominee, Daniel Domenico, who is on the floor awaiting
25:52
Speaker 3: the vote, and that will happen when they return in September,
25:58
Speaker 3: and that would be it. There's a another vacancy in
26:02
Speaker 3: the fifth Circuit we've talked about with Anna Saint John.
26:05
Speaker 3: She had a heroing but she still won't need a
26:07
Speaker 3: committee vote and a floor vote. And then Bobby Shepherd
26:14
Speaker 3: from Arkansas on the eighth Circuit has said publicly that
26:18
Speaker 3: he will assume senior status and there's no nominee yet
26:22
Speaker 3: from the White House for his vacancy. So that's all
26:26
Speaker 3: you have on the appeals courts.
26:28
Speaker 2: Now when they come back, are they going to have
26:30
Speaker 2: time to do anything.
26:32
Speaker 3: They'll have some three weeks in September. I believe they'll
26:35
Speaker 3: come back on the fourteenth and they will be able
26:40
Speaker 3: to do some work then, and they may be able
26:43
Speaker 3: to get Saint John through. And then there are a
26:45
Speaker 3: couple of district nominees and they'll go through for Texas seats,
26:50
Speaker 3: and then the first day they're back for the Southern
26:53
Speaker 3: District of Ohio, Matthew Byrne will have a culture road
26:58
Speaker 3: and then confirmation on that Tuesday. But that is it.
27:02
Speaker 3: And when those people have votes, then it really will
27:07
Speaker 3: be incumbent on the White House to have more nominees
27:12
Speaker 3: in front of them, but no one will be able
27:14
Speaker 3: to be confirmed except for Anna, Saint John and those
27:19
Speaker 3: I just mentioned to you before they go out to
27:24
Speaker 3: campaign and then return after the midterms. Things are slowing
27:28
Speaker 3: down on that front. Grastly though has said that he
27:32
Speaker 3: will work to the bitter end, but he doesn't have
27:36
Speaker 3: much to work with, and so it's really incumbent on
27:38
Speaker 3: the White House to name more nominees, which they may
27:42
Speaker 3: do during this break, right, and so that's possible, and
27:46
Speaker 3: then there will be a lame duck and some things
27:50
Speaker 3: could happen there too.
27:51
Speaker 2: Is there anyone in charge at the White House of
27:55
Speaker 2: judicial nominations like there was in the first administration.
28:00
Speaker 3: There are people that have been working on it, you know.
28:03
Speaker 3: There's just a brand new White House Council announced. Warrington
28:07
Speaker 3: is leaving, going back I think to practice, and Will Sharf,
28:13
Speaker 3: who mostly has been moving the paperwork for the President
28:18
Speaker 3: as the staff secretary, so he helps with executive orders
28:22
Speaker 3: and that type of thing, will become the new White
28:24
Speaker 3: House Council and of course, the Office of Policy Development
28:29
Speaker 3: in the Justice Department helps prepare nominees and may help
28:34
Speaker 3: with working with home state senators. And I've seen Senator
28:40
Speaker 3: Cornyn from Texas saying, we've been working with the White
28:43
Speaker 3: House and we have people in the pipeline because there
28:46
Speaker 3: are five vacancies there all are emergencies, and three I
28:52
Speaker 3: think of those don't have nominees yet. So that's the
28:56
Speaker 3: state with the most vacancies at this point.
28:59
Speaker 2: Are the plan appointed judges who can take senior status
29:04
Speaker 2: not taking senior status for a reason or is it
29:07
Speaker 2: just a sort of phenomenon.
29:09
Speaker 3: It almost varies from judge to judge. But I think
29:14
Speaker 3: that this White House is probably surprised that there are
29:18
Speaker 3: not more judges who were Republican appointees who have taken
29:24
Speaker 3: senior status, a number in their seventies, a number in
29:28
Speaker 3: their eighties, and some even in their nineties. And so
29:32
Speaker 3: I don't know what that's all about. But of course
29:36
Speaker 3: Democrats would say and probably have said, that the President
29:40
Speaker 3: judges may not want Trump to name people to succeed them.
29:45
Speaker 2: We've discussed before when there are these controversial nominees, they've
29:50
Speaker 2: been ideologues rather than just conservative I mean, would you
29:54
Speaker 2: say most of the appointees are ideologues stand with a
30:00
Speaker 2: lot of Trump's former lawyers.
30:03
Speaker 3: Well, three I believe so far have been his private
30:07
Speaker 3: lawyers in practice, and there may be more coming. But
30:12
Speaker 3: on the appellate bench, those ten we talked about or eleven,
30:16
Speaker 3: most of them look more to me like standard issue
30:20
Speaker 3: federal Society type of judges, though they're very conservative ideologically.
30:27
Speaker 3: But at the district level they're extremely conservative ideologically, and
30:33
Speaker 3: a number of them have worked for entities, for example,
30:38
Speaker 3: in opposition to abortion, in religious freedom cases and other
30:47
Speaker 3: high profile areas that are controversial. So one talked about
30:52
Speaker 3: being an anti abortion crusader one of the district nominees
30:57
Speaker 3: in Missouri, and others have been conservative. So that's where
31:02
Speaker 3: you see it more than on the appellate bench, I think.
31:05
Speaker 3: But you know, ten is a pretty small sample.
31:08
Speaker 2: Most of these were on party line votes.
31:12
Speaker 3: Yes, a surprisingly high number were party line votes, and
31:17
Speaker 3: I think that's attributable to the fact that Democrats are
31:21
Speaker 3: not happy about the refusal of all the nominees. I
31:25
Speaker 3: think a pellot and district to answer two important questions
31:30
Speaker 3: for Democrats. One is who won the election in twenty
31:34
Speaker 3: twenty and the January sixth Capital rioters who entered the
31:41
Speaker 3: Capitol and beat police on January sixth, twenty twenty one.
31:45
Speaker 3: They've been apparently given patented answers by the White House,
31:48
Speaker 3: and Democrats have been understandably unhappy with that, and so
31:54
Speaker 3: very few of the judges, some of the district judges,
31:57
Speaker 3: for example, there were two recent ones in blue states
32:03
Speaker 3: more or less Pennsylvania actually would split delegation and then
32:07
Speaker 3: Michigan to assist that US attorneys basically received a fair
32:12
Speaker 3: number of three or four Democratic votes, but they also
32:16
Speaker 3: were more flexible about answering those two questions. That disproves
32:20
Speaker 3: that Democrats are not happy with the answers from most
32:23
Speaker 3: other nominees to those questions.
32:26
Speaker 2: Chuck Grassley is going to give the gavel over. Do
32:30
Speaker 2: we know what he's giving it to?
32:32
Speaker 3: No, It depends on what happens in the midterms, right.
32:36
Speaker 3: I think it goes to the senior most person on
32:39
Speaker 3: the committee, and I think at this point it would
32:43
Speaker 3: be Mike Lee on the Republican side from Utah. Given
32:49
Speaker 3: Cornyn is not going to be returning, he would be
32:52
Speaker 3: more senior. And then I think after Lee it would
32:55
Speaker 3: be cruise in terms of seniority in the Senate usually
33:00
Speaker 3: falls to that person unless the person has another committee
33:04
Speaker 3: assignment where he wants to be chair or she wants.
33:08
Speaker 1: To be chaired.
33:09
Speaker 2: Thanks so much, Carl. That's Professor Carl Tobias of the
33:12
Speaker 2: University of Richmond's School of Law. And that's it for
33:16
Speaker 2: this edition of The Bloomberg Law Show. Remember you can
33:18
Speaker 2: always get the latest legal news on our Bloomberg Law Podcast.
33:22
Speaker 2: You can find them on Apple Podcasts, Spotify, and at
33:25
Speaker 2: www dot bloomberg dot com slash podcast Slash Law, and
33:30
Speaker 2: remember to tune into The Bloomberg Law Show every weeknight
33:33
Speaker 2: at ten pm Wall Street Time. I'm June Grosso and
33:37
Speaker 2: you're listening to Bloomberg