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Weekend Law: SCOTUS Deadlock, Social Media Suit & Interim Appts · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 1: The Supreme Court deadlocked four to four on Thursday in
0:12
Speaker 1: a major case over the separation of religion and government,
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Speaker 1: thwarting an effort to create the nation's first publicly funded
0:20
Speaker 1: religious charter school in Oklahoma. The tie was possible because
0:25
Speaker 1: Justice Amy Coney Barrett recused herself from the case. The
0:29
Speaker 1: Supreme Court's one sentence order didn't reveal which justices were
0:33
Speaker 1: on which side of the divide, but during the oral
0:36
Speaker 1: arguments it seemed apparent that four conservative justices were likely
0:41
Speaker 1: to side with the Catholic charter school, and the three
0:44
Speaker 1: liberal justices were likely to side with Oklahoma. Here are
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Speaker 1: Justices Brett, Kavanaugh, and Sonya.
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Speaker 2: So to Mayor, and then you come in and you say, oh,
0:55
Speaker 2: worral religious school. It's like, Oh, No, can't do that.
0:59
Speaker 2: That's too much, that's scary. We're not going to do that.
1:03
Speaker 2: And our cases have made very clear, and I think
1:06
Speaker 2: those are some of the most important cases we've had
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Speaker 2: of saying you can't treat religious people and religious institutions
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Speaker 2: and religious speech as second class in the United States.
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Speaker 3: Because the essence of the establishment clause was, we're not
1:22
Speaker 3: going to pay religious leaders to teach their religion. That
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Speaker 3: is and has always been the essence. And here we're
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Speaker 3: paying Catholic leaders Catholic teachers. You can only be a
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Speaker 3: teacher in this school if you're willing to accept the
1:43
Speaker 3: teachings of the Catholic Church.
1:45
Speaker 1: That left Chief Justice John Roberts as the pivotal vote,
1:49
Speaker 1: and the Chief distinguished the Oklahoma case from past Supreme
1:53
Speaker 1: Court decisions backing the use of public money for religious schools,
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Speaker 1: saying there appeared to be more state involvement in this case.
2:02
Speaker 4: Trinity luther and Espinoza Carson, those involved fairly discrete state involvement.
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Speaker 4: In Trinity Lutheran, they're going to pave the or you know,
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Speaker 4: put woodchips on the on the playground. In Espinosa it
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Speaker 4: was a tuition credit, and Carson again tax credits. I mean,
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Speaker 4: this does strike me as a much more comprehensive involvement.
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Speaker 1: The split leaves in place the Oklahoma Supreme Court decision
2:34
Speaker 1: blocking the religious charter school and leaves open the question
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Speaker 1: of whether states with taxpayer funded charter school programs are
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Speaker 1: constitutionally required to incorporate religious institutions My guest is religious
2:48
Speaker 1: liberty expert Stephanie Barkley, a professor at Georgetown Law. How
2:54
Speaker 1: important is this case? What would the consequences have been
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Speaker 1: if the Court had allowed the nation's first faith based
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Speaker 1: charter school.
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Speaker 5: So there's really two questions there. The one question is
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Speaker 5: if the court had ruled in favor of the faith
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Speaker 5: based charter school, how important of a decision would it
3:12
Speaker 5: have been? And that would have been a landmark case.
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Speaker 5: It would have been the first time that we had
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Speaker 5: a face based charter school and would have had some
3:19
Speaker 5: significant implications, probably not just for faith based schools and
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Speaker 5: charter school but potentially in other states as well. Now
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Speaker 5: there's the second question, which is, Okay, well, how significant
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Speaker 5: is the court's decision given that it's just, you know,
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Speaker 5: a very brief order without an opinion for for split,
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Speaker 5: affirming the lower court decision. And at that point the
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Speaker 5: answer is as a matter of precedent, that precedent is
3:40
Speaker 5: not particularly important. It's not going to tell us, you know,
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Speaker 5: much about anything besides the fact that they're affirming this case.
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Speaker 5: There weren't five votes to reverse the Supreme Court in Oklahoma,
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Speaker 5: and in that way, it's going to be of limited
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Speaker 5: presidential effect.
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Speaker 1: Does this case reflect tension between the First Amendments two
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Speaker 1: religion clauses, the establishment clause and the free exercise Clause.
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Speaker 5: I don't think there is a tension between the two
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Speaker 5: religion clauses, and the Supreme Court emphasized that in its
4:09
Speaker 5: recent case in Kennedy versus Birmerton School District. But largely
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Speaker 5: those clauses work together in a mutually reinforcing way. But
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Speaker 5: this case does highlight the way in which you could
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Speaker 5: get a different outcome under either of those clauses, depending
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Speaker 5: on whether we're dealing with a private school or a
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Speaker 5: government school. Because if it's a government school, then it
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Speaker 5: is pretty clear that government doesn't get to run religious
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Speaker 5: programs where it's preferring one type of denomination over another,
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Speaker 5: or setting out religious liturgy and things like that would
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Speaker 5: be prohibited under the approach to the Establishment Clause. The
4:41
Speaker 5: Court has been taking post Kennedy, where it looks at
4:44
Speaker 5: the six historical hallmarks of an established religion. Now, if
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Speaker 5: it's a private school, then the free exercise clause is
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Speaker 5: the relevant focus. Then the question is can the government
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Speaker 5: exclude the private school And the trajectory of cases that
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Speaker 5: it has had in Trinity Lutheran, Espinoza and Carson makes
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Speaker 5: pretty clear that the Court takes the free exercise clause
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Speaker 5: prohibits government from excluding religious schools just on that basis.
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Speaker 5: So it is a case that highlights for an outcomes
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Speaker 5: depending on the government versus private nature of the entity.
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Speaker 1: We don't know how the justices voted. The arguments suggested
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Speaker 1: perhaps that the Chief Justice was the pivotal vote who
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Speaker 1: might have gone with the three liberals.
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Speaker 5: I think that that's probably the most likely outcome that
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Speaker 5: you had. The Chief Justice Snawyer, Kagan, and Jackson do
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Speaker 5: not feel comfortable overruling the Oklahoma Supreme Court. And then
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Speaker 5: you had the other four justices, Justice Thomas, Alito, Gorsich,
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Speaker 5: and Kavanaugh. It probably would have ruled to overrule the
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Speaker 5: Oklahoma Supreme Court. And then of course Justice Spirit is recusing.
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Speaker 5: And of course because they only got to four to four,
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Speaker 5: that means it's an automatic affirmat of the previous judgment.
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Speaker 1: Were you surprised that there weren't five votes for the
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Speaker 1: religious charter school.
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Speaker 5: I think it's fortunate that there weren't five votes. I
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Speaker 5: think it's possible that the Chief was concerned about lack
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Speaker 5: of percolation. This is the first case of its time.
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Speaker 5: There aren't other cases that have grappled with this yet,
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Speaker 5: so hard to read. The tea leaves about exactly what
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Speaker 5: was the worry for him, But I think it's promising
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Speaker 5: that this court doesn't have an opinion from the chief,
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Speaker 5: sort of taking it out in a way that suggests
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Speaker 5: that this would be a permanent position, but leaving the
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Speaker 5: door open to future challengers and future cases.
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Speaker 1: So, then, do you think that states that fund charter
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Speaker 1: schools should be required to fund religious charter schools.
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Speaker 5: I think that if a state is operating such that
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Speaker 5: they're using the label of like a government school, that
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Speaker 5: they're really treating it like a voucher, then I think
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Speaker 5: probably the functional analysis matters more than the labels do.
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Speaker 5: But if the government is really operating charter schools like
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Speaker 5: other government schools, then I think government should be entitled
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Speaker 5: to make choices about running secular government schools. But really
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Speaker 5: just thelevels in the details of how is that particular
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Speaker 5: government operating at school system, how much oversight is there,
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Speaker 5: is it being even handed in the way it's approaching
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Speaker 5: that overside with the different types of charter schools and
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Speaker 5: public schools. Those are all going to be questions that
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Speaker 5: will be certainly relevant to the Court should a case
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Speaker 5: like this rise again.
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Speaker 1: The four to four TI was a product of Justice
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Speaker 1: amy Cony Barrett recusing herself. So since it's not a
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Speaker 1: nationwide precedent, is it likely that proponents of religious charter
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Speaker 1: schools will simply try again in a case where Justice
7:33
Speaker 1: Barrett can sit on the case.
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Speaker 5: So I think that that is certainly not for close
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Speaker 5: by the Court's opinion in this case, and a possibility
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Speaker 5: at some point in the future. I think the most
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Speaker 5: likely next case that you will see in the school
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Speaker 5: choice movement is Saint Dominic Academy versus Macon, which would
7:51
Speaker 5: be coming out of Maine. It's possible other cases could too,
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Speaker 5: but this is one that is already in the court system,
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Speaker 5: and it is essentially Carson two point zero, So name
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Speaker 5: the same government that the Supreme Court ruled against in
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Speaker 5: Carves and revised their laws when the case was sent
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Speaker 5: back down to try and find other creative ways to
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Speaker 5: keep faith based schools out of what is not a
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Speaker 5: charter school system, but it has always included private schools
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Speaker 5: and operates more like a traditional tuition boucher program, and
8:18
Speaker 5: there are faith based schools that are challenging that right now,
8:21
Speaker 5: and that's making its way through the court system. So
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Speaker 5: I think we're the court to take another school choice
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Speaker 5: sort of case. I think that's a more likely next step.
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Speaker 5: There are no cases right now percolating that I'm aware
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Speaker 5: of where there's another faith based charter school that has
8:34
Speaker 5: been approved or requested to be created and been denied
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Speaker 5: and that they're doing over that right now.
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Speaker 1: Has the Supreme Court in recent years expanded religious liberty
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Speaker 1: rights over other rights?
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Speaker 5: I don't think that I would say they've expanded religious
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Speaker 5: liberty rights over other rights, but they have certainly given
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Speaker 5: a lot of attention to and been solicitous towards religious
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Speaker 5: claim although there are certainly religious claimants that have been
8:57
Speaker 5: before the courts that didn't win their case, and this
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Speaker 5: is another So I think I think this is a
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Speaker 5: court that takes balanced and cautious approaches while still being
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Speaker 5: sympathetic towards religious liberty claims and wanting to ensure that
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Speaker 5: it's providing for best protection under our First Amendments.
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Speaker 1: We're waiting for two more decisions from the Court in
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Speaker 1: religion cases. Tell us about those.
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Speaker 5: One is a case called My Food and that is
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Speaker 5: another case in the educational context coming out of Maryland.
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Speaker 5: And this is a case where this school district has
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Speaker 5: instituted a policy where books are being read to children
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Speaker 5: down to elementary school and preschool that deal with issues
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Speaker 5: related to sexuality gender identity. And there are parents who
9:40
Speaker 5: aren't objecting to those books being read broadly, but would
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Speaker 5: like to be able to opt their children out in
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Speaker 5: the school in that case has said that they are
9:49
Speaker 5: not allowed to opt their children out. Their only option
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Speaker 5: is to drop out of school altogether if they don't
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Speaker 5: like that policy. So the Supreme Court has hurt oral
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Speaker 5: argument in that case, and it seems likely from oral
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Speaker 5: arguments that they will rule in favor of the religious
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Speaker 5: parents who Muslim parents, Jewish parents, and Christian parents in
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Speaker 5: a coalition in that case. Another case is the Catholic
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Speaker 5: Charity Is case that the Court heard before that that
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Speaker 5: is a case where there is a question of whether
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Speaker 5: a Catholic constitution can qualify for tax benefit in the state.
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Speaker 5: The decision from the state Supreme Court had said that
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Speaker 5: if the Catholic groups were engaging in more typical religious behavior,
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Speaker 5: and we're organized in a more typical way, and we're
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Speaker 5: doing things like proselytizing to other individuals as part of
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Speaker 5: their ministry, then they would qualify for the tax benefits.
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Speaker 5: But because this Catholic charity does not proselytize and that's
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Speaker 5: not part of their mission. They would serve people of
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Speaker 5: their religious groups or not all alike, and they don't
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Speaker 5: try and convert people to their theology, because the Catholic
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Speaker 5: ministry doesn't do that. On that basis, they don't qualify
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Speaker 5: for the tax benefit. And that was another case where
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Speaker 5: the court seems quite skeptical of the government action. Justice
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Speaker 5: Kagan in that case even asked like, isn't it pretty
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Speaker 5: clear the government doesn't get to tell people what ordinary
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Speaker 5: religious practices and which practices are approved and which or not. So,
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Speaker 5: I mean, it's even impossible in that case the government
11:09
Speaker 5: might be facing unanimous defeat. Certainly something is likely that
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Speaker 5: they could get eight one or seven two votes in
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Speaker 5: that case.
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Speaker 1: And we'll find out the results of both those cases
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Speaker 1: before July. Thanks so much for joining me, Stephanie. That's
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Speaker 1: Professor Stephanie Barkley of Georgetown Law coming up next on
11:27
Speaker 1: The Bloomberg Law Show. Families of the Buffalo mass shooting
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Speaker 1: victims want to hold social media platforms libel, and they're
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Speaker 1: asking a New York appellate court to allow their suit
11:38
Speaker 1: to go forward. I'm June Grosso and you're listening to Bloomberg.
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Speaker 1: It's been three years since a white supremacist opened fire
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Speaker 1: inside a grocery store in Buffalo and killed ten people.
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Speaker 1: The eighteen year old shooter pleaded guilty to all state
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Speaker 1: charges and was sentenced to eleven concurrent life sentences. Survive
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Speaker 1: and families of the victims have been trying to hold
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Speaker 1: social media companies responsible for publishing racist content that allegedly
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Speaker 1: motivated the shooter to commit the hate crimes targeting people
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Speaker 1: in a historically black neighborhood hundreds of miles from his home.
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Speaker 6: Our case is fundamentally about the isolation, obsession, lack of
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Speaker 6: impulse control, and desensitization resulting from the neurological and psychological
12:29
Speaker 6: trauma inflicted on a teenager's brain by a highly addictive
12:33
Speaker 6: social media product.
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Speaker 1: The social media companies, which include Meta, Discord, Snapchat, and Twitch,
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Speaker 1: say Section two thirty of the Communications Decency Act protects
12:45
Speaker 1: them from liability for third party content but the trial
12:48
Speaker 1: judge ruled that the lawsuits could go forward, and both
12:52
Speaker 1: sides were in a New York appellate court this week
12:55
Speaker 1: as the companies try to get the suits dismissed. The
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Speaker 1: victim's families argued that the algorithms used by the sites
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Speaker 1: to deliver content should be considered products under the state's
13:06
Speaker 1: product liability law, but the companies argue that non tangible
13:10
Speaker 1: things can't be considered products. Here are the attorneys for
13:14
Speaker 1: the victims families and Meta.
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Speaker 7: Any time a manufacturer places a dangerous product into the
13:20
Speaker 7: stream of commerce that they reasonably know creates an unreasonable
13:25
Speaker 7: risk of harm to the public, are liable under New
13:29
Speaker 7: York State products liability law. It's plain and dirt simple.
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Speaker 8: And there are two sort of foundational problems here that
13:39
Speaker 8: get us outside of the realm of traditional product liability.
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Speaker 8: One is that communicating intangible information is not a product,
13:48
Speaker 8: and the second is that services are not products. And
13:52
Speaker 8: here we have both of those things. Product liability law
13:57
Speaker 8: is geared to the tangible world.
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Speaker 1: My guest is Eric Goleman, a professor at Santa Clara
14:03
Speaker 1: University Law School and co director of the High Tech
14:06
Speaker 1: Law Institute. Eric can you tell us about the allegations
14:09
Speaker 1: of the plaintiffs in these cases.
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Speaker 9: The case involves the mast shooting in a Buffalo supermarket
14:16
Speaker 9: by a white supremacist, and the basic gist of the
14:20
Speaker 9: claims is that the shooter was radicalized on Facebook, and
14:25
Speaker 9: so in order to fit that into legal doctrines, there's
14:28
Speaker 9: a variety of different claims that the victims and families
14:32
Speaker 9: have made in order to explain what's wrong with that,
14:36
Speaker 9: Why does that actually create legal rights for the victims do?
14:40
Speaker 9: Some of those include a claim that Facebook was negligent,
14:45
Speaker 9: that it should have done something different to protect the victims,
14:49
Speaker 9: and some of it is based on what we sometimes
14:52
Speaker 9: call products liability. That Facebook is a product that is
14:56
Speaker 9: dangerous and as a result, any harm that's caused by
14:59
Speaker 9: a danger this product can be attributable to the supplier
15:02
Speaker 9: of that product.
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Speaker 1: Are the plaintiffs bringing it under the product liability law
15:08
Speaker 1: in order to get around section two thirty No.
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Speaker 9: Section two thirty is a defense, whereas the planets have
15:15
Speaker 9: to still figure out a claim that actually fits their facts. However,
15:19
Speaker 9: they do want to pick claims that are not preempted
15:21
Speaker 9: by section two thirty, which says, in short, that websites
15:25
Speaker 9: aren't liable for third party content. So the idea is
15:27
Speaker 9: that the planiffs are arguing that they're not suing to
15:31
Speaker 9: hold Facebook liable for the third party content they're suing
15:35
Speaker 9: based on Facebook's contribution to the radicalization of the shooter.
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Speaker 1: When you think of product liability, you think of tangible objects.
15:44
Speaker 1: You know, a mechanical device that injures you, something like that.
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Speaker 1: Has a New York court ever found a streaming service
15:53
Speaker 1: or social media to be a product under the state's
15:56
Speaker 1: product liability law.
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Speaker 9: For decades, there have been legal theories that have held
16:01
Speaker 9: that the supply of physical items that are at risk
16:04
Speaker 9: of causing physical injury are liable for those physical injuries.
16:08
Speaker 9: And one of the classic old cases involve exploding Coca
16:12
Speaker 9: cola bottles, and if you didn't manufacture and fill the
16:15
Speaker 9: Coca cola bottle properly, it could literally explode and create
16:19
Speaker 9: shards of laughs that were projectiles. And so the idea
16:22
Speaker 9: is that we want manufacturers to be more careful in
16:24
Speaker 9: the manufacturer of an item like that because of the
16:26
Speaker 9: physical risk of poses when that item is now in
16:29
Speaker 9: consumers homes. There's a very bright line in those doctrines
16:34
Speaker 9: between physical items they are capable of causing physical injury,
16:38
Speaker 9: and intangible thinks or services which do not pose the
16:43
Speaker 9: same risk of sending glass yards as projectiles because there's
16:47
Speaker 9: literally nothing like that in their possession. So the laws
16:52
Speaker 9: normally limit products liability theories to actual physical products, not
16:58
Speaker 9: to services like Internet services like Facebook, So it's a
17:04
Speaker 9: leap of the theory to try and expand it to
17:07
Speaker 9: cover services. This theory wasn't designed for that purpose, it's
17:10
Speaker 9: not optimized to do so. And unlike the regulation of
17:14
Speaker 9: Coca Cola bottles exploding with glass chards, there's significant speech
17:19
Speaker 9: implications if we try to regulate the dissemination information as
17:23
Speaker 9: if it's an exploding coke bottle. So there have been
17:25
Speaker 9: plaintiffs across the country that have been trying out the
17:29
Speaker 9: theories that Internet services are subject to products liability doctrines
17:34
Speaker 9: and courts have split on that issue. Most courts have
17:38
Speaker 9: rejected it, some have entertained it, and so it's a
17:41
Speaker 9: live frontier in internet law today.
17:44
Speaker 1: And had there been rulings bipellet.
17:46
Speaker 9: Courts on that, Yes and no. There's been a variety
17:49
Speaker 9: of rulings in different fact circumstances, but there's a leading
17:53
Speaker 9: case in this area that just came out in February
17:55
Speaker 9: from the Fourth Circuit involved a very very similar case
17:58
Speaker 9: evolving the shooter who allegedly was radicalized on Facebook, and
18:03
Speaker 9: the plaintiffs argued products liability is part of the reasons
18:06
Speaker 9: why Facebook should be liable, and in that case the
18:09
Speaker 9: Federal peblic Court shut all that down and said that
18:12
Speaker 9: Facebook qualified for Section two thirty. Everything that the planets
18:15
Speaker 9: are arguing was trying to hold Facebook liable for the
18:18
Speaker 9: third party content available on service, and therefore the planets lose.
18:22
Speaker 9: So the plainlifs in this case aren't directly bound by
18:25
Speaker 9: that ruling, but clearly there's a strong message from that
18:28
Speaker 9: ruling that the plantiff's arguments should not be successful.
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Speaker 1: Does that issue depend on the state's product liability law,
18:35
Speaker 1: because those laws differ from state to state.
18:38
Speaker 9: It can we have to look at the terms of
18:41
Speaker 9: the exact statute, what it says it covers. That might
18:44
Speaker 9: very well restrict plaints claims, but not expand them. In
18:47
Speaker 9: other words, there's some limit to the theory that as
18:50
Speaker 9: far as it can go, at some point it has
18:53
Speaker 9: to stop, either because of doctrines like Section two thirty,
18:56
Speaker 9: which Congress enacted as the way to prevent that kind
18:59
Speaker 9: of expansion, or because of the First Amendment that the
19:02
Speaker 9: Constitution does not permit a physical based legal doctrine to
19:07
Speaker 9: extend to the dissemination of speech.
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Speaker 1: Eric tell us about the plaintiff's claims about the algorithms.
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Speaker 9: So, in order for the shooter to get access to
19:16
Speaker 9: the radicalizing content, somebody has to upload it, and then
19:20
Speaker 9: Facebook has to make the match to present that to
19:23
Speaker 9: the reader to the shooter in this case, and so
19:25
Speaker 9: plainists have often claimed that it was the algorithm Facebook
19:29
Speaker 9: created that led to this radicalization. Now, there are a
19:31
Speaker 9: couple of problems with that theory. One is, it was
19:34
Speaker 9: expressly rejected in the Fourth Circuit opinion that I mentioned earlier.
19:38
Speaker 9: Federal Peller Court said that's not a way of getting
19:41
Speaker 9: around Section two thirty the other piece, and the Appellate
19:44
Speaker 9: Court mentioned this as well, that in order for Facebook
19:47
Speaker 9: to do anything differently to prevent that recualization, it would
19:50
Speaker 9: have to re architect its entire service. In other words,
19:53
Speaker 9: there's not a way of it just changing the algorithm
19:56
Speaker 9: to eliminate the risk of radicalization without changing any the
20:00
Speaker 9: other element of its algorithms. In other words, there's no
20:03
Speaker 9: easy fix here for Facebook. Facebook work the way it
20:06
Speaker 9: was designed to work. It may matches between people and
20:09
Speaker 9: content they might be interested in. Unfortunately, some people are
20:12
Speaker 9: interested in content that is antisocial. Facebook's algorithm treats that
20:17
Speaker 9: the same as all other content.
20:18
Speaker 1: If the court allows the case to go forward, well,
20:21
Speaker 1: the plaintiffs have to prove that Facebook or the other
20:25
Speaker 1: platforms led to the radicalization of the shooter. And how
20:29
Speaker 1: difficult will that be?
20:31
Speaker 9: Definitely they'll have to show that what we call causation
20:34
Speaker 9: when it comes to negligence. I believe that that will
20:37
Speaker 9: also be relevant in the context of strict products liability,
20:41
Speaker 9: and it will be difficult. And causation was also an
20:44
Speaker 9: issue in the Federal Appellate Court. Rulin I mentioned from
20:47
Speaker 9: the Fourth Circuit and the court independently said there was
20:50
Speaker 9: not sufficient causation in that case. And when we think
20:53
Speaker 9: about what causes someone to radicalize into a white seup
20:58
Speaker 9: premisis and even words, will this is a white supremacist
21:01
Speaker 9: to then decide to engage in mass murder, there's so
21:05
Speaker 9: many things that contribute to that outcome, and it's very
21:08
Speaker 9: difficult to pull out one piece and say that's the cause.
21:12
Speaker 9: They should bear all the burden of responsibility. In fact,
21:15
Speaker 9: it really is a whole of society failure to have
21:17
Speaker 9: people who end up in that circumstance, and we really
21:20
Speaker 9: need to look at our society across the board to
21:22
Speaker 9: figure out what went wrong and what we ought to
21:25
Speaker 9: be doing differently, and to try and pin it on
21:27
Speaker 9: anyone player in the ecosystem. To say Facebook was the
21:30
Speaker 9: reason why this particular person pulled the trigger, I really
21:33
Speaker 9: think kind of denies the reality of how we've all
21:37
Speaker 9: contributed to a society that can lead to these outcomes and.
21:42
Speaker 1: Explain how section two thirty would work here as a defense.
21:46
Speaker 9: So the plan I'm started arguing that Facebook radicalized the shooter,
21:50
Speaker 9: and Facebook itself normally doesn't publish content itself that it authored.
21:56
Speaker 9: It's primary way of engaging in content distribution is to
22:01
Speaker 9: gather third party content like the Facebook post that we
22:04
Speaker 9: all make as the everyday activity and then share that
22:07
Speaker 9: with an audience. And so the content that allegedly radicalized
22:13
Speaker 9: the shooter didn't come from Facebook. Facebook most was the
22:17
Speaker 9: mechanism by which some author matched with the shooter, and
22:21
Speaker 9: so it's impossible really to describe Facebook's role in radicalizing
22:26
Speaker 9: the shooter without talking about the content that regalized the shooter,
22:30
Speaker 9: all of which came from a third party. And if
22:32
Speaker 9: third party content can't create liability for Facebook, section two
22:35
Speaker 9: threy will apply.
22:36
Speaker 1: Is the easiest path for the appellate court here to
22:39
Speaker 1: send the case back to the trial court saying the
22:41
Speaker 1: facts have to be developed more before we can make
22:45
Speaker 1: a decision.
22:46
Speaker 9: So that's essentially what the lower court did. The lower
22:49
Speaker 9: court basically said, I understand Facebook's defenses, and yet I
22:54
Speaker 9: need to see more facts before I'm prepared to make
22:56
Speaker 9: the conclusion that products liability applies, or even that's Section
23:00
Speaker 9: two thirty applies. So one possibility is that the pel
23:03
Speaker 9: court could say that district court was right. Let's let
23:06
Speaker 9: the case continue to evolve in its ordinary manner, and
23:09
Speaker 9: once we get more information, then we'll be able to
23:11
Speaker 9: figure out what defense is to actually apply in the circumstance.
23:14
Speaker 9: Most cases evolving section two thirty don't do that. Most
23:17
Speaker 9: cases in section two thirty, and at the motion of
23:20
Speaker 9: the Smiths, because it is obvious on the face there's
23:22
Speaker 9: nothing that would be produced in discovery that would show
23:27
Speaker 9: that Section two thirty didn't apply and here. I don't
23:30
Speaker 9: think anyone's contesting that Facebook provided or authored the radicalizing content.
23:35
Speaker 9: The allegation is that it match the shooter with third
23:39
Speaker 9: party content. So everything that the court needs to know
23:42
Speaker 9: about Section two thirty is, I think or are you
23:44
Speaker 9: available to it? So punting on that question actually would
23:47
Speaker 9: be a disservice to Facebook and I think to all
23:50
Speaker 9: other social media that expect to be able to avoid
23:53
Speaker 9: the liability for things that they're not legally responsible for.
23:56
Speaker 1: But it wouldn't be the first time we've seen a
23:58
Speaker 1: court punt when it didn't need to. Thanks Eric. That's
24:01
Speaker 1: Professor Eric Goldman of Santa Clara University Law School. A note.
24:05
Speaker 1: Michael Bloomberg, the founder majority owner of Bloomberg LP, the
24:09
Speaker 1: parent of Bloomberg Radio, is a donor to groups that
24:13
Speaker 1: support gun control, including every Town for Gun Safety, which
24:17
Speaker 1: represented the plaintiffs here in the lower courts. Coming up,
24:21
Speaker 1: President Trump tests the appointments power. I'm June Grosso and
24:24
Speaker 1: you're listening to Bloomberg. Hi, everyone, it's Judge Jeanine.
24:29
Speaker 4: I'm at the water cooler in the United States Attorney's
24:32
Speaker 4: Office in Washington, d C.
24:33
Speaker 1: President Trump appointed Jeanine Piro, the former Fox News host
24:37
Speaker 1: and prosecutor, to be the interim US Attorney for d C,
24:42
Speaker 1: taking the place of Ed Martin, who was the interim
24:45
Speaker 1: DC US attorney for close to one hundred and twenty days.
24:48
Speaker 1: Having two successive interim appointments test the bounds of the
24:53
Speaker 1: appointment's power. It also reflects a growing trend of president's
24:57
Speaker 1: leaning on temporary appointments for top roles. In Trump's first administration,
25:03
Speaker 1: he appointed three successive officials to temporarily fill the role
25:08
Speaker 1: of Secretary of Homeland Security. That practice ultimately backfired in
25:13
Speaker 1: court when federal judges found that two of those acting
25:17
Speaker 1: secretaries were improperly serving and struck down immigration restrictions they'd issued.
25:23
Speaker 1: Joining me is Anne Joseph O'Connell, a professor at Stanford
25:27
Speaker 1: Law School who specializes in political appointments. Will you explain
25:31
Speaker 1: the provisions that are at play when a US attorney
25:34
Speaker 1: is given an interim appointment.
25:37
Speaker 10: So, when there's not a Senate confirmed US attorney in
25:40
Speaker 10: a particular district, there are two statutes that can provide
25:45
Speaker 10: for temporary service. So the first, what we call interim
25:49
Speaker 10: US attorneys, is a specific provision in the United States
25:53
Speaker 10: Code called section five forty six, and that provision allows
25:57
Speaker 10: for the Attorney General to chew a temporary interim US
26:02
Speaker 10: attorney for the district in which there is not a
26:04
Speaker 10: Senate confirmed person. There are no restrictions on who the
26:09
Speaker 10: Attorney General can pick, so they don't have to pick
26:11
Speaker 10: someone who's within the Department of Justice, unlike this other
26:15
Speaker 10: statutory provision. And so the Attorney General can pick an
26:18
Speaker 10: interim US attorney and that person can serve for one
26:22
Speaker 10: hundred and twenty days under section five forty six, and
26:25
Speaker 10: then after that one hundred and twenty days expires, the
26:29
Speaker 10: district Court may right may appoint a US attorney to
26:35
Speaker 10: serve until there is a Senate confirmed one.
26:38
Speaker 1: So what happened here is the term for ed Martin
26:41
Speaker 1: was about to run out, and before the district Court
26:44
Speaker 1: could appoint someone, President Trump nominated as another interim US attorney.
26:50
Speaker 1: Jeanine Piro, I mean, is that according to the.
26:53
Speaker 10: Rules, Well, it depends whether you're looking at the text
26:56
Speaker 10: of the rule or the intent of the provision. Under
26:59
Speaker 10: the text, I think it's permitted. The provision Section five
27:04
Speaker 10: forty six does not explicitly bar successive one hundred and
27:08
Speaker 10: twenty day appointments. And I should also note that even
27:12
Speaker 10: if the district courts had chosen someone, the President in
27:16
Speaker 10: all likelihood could have fired the district court pick and
27:20
Speaker 10: picked another interim US attorney or turned this other statute
27:24
Speaker 10: the Federal Vacancy's Reform ac So I think the text
27:27
Speaker 10: permits successive appointments. There's no explicit bar on it, and
27:33
Speaker 10: in the past we have seen successive appointments. Now that's
27:37
Speaker 10: the text. When Congress reimposed time limits, so put back
27:42
Speaker 10: the one hundred and twenty day constraint on how long
27:45
Speaker 10: interim US attorneys can serve. They did that in two
27:48
Speaker 10: thousand and seven after a US attorney scandal involving Attorney
27:53
Speaker 10: General al Larto Gonzalez, who had fired a number of
27:58
Speaker 10: US attorneys. And the scandal was not whether the president
28:01
Speaker 10: or the Attorney General could fire US attorneys. It was
28:04
Speaker 10: about the reason that was given for those firings. But
28:08
Speaker 10: at the time that it happened, there was no limit
28:10
Speaker 10: on how long interim US attorneys could serve, and there
28:14
Speaker 10: was a period of years where there was kind of
28:16
Speaker 10: no time limit. But then in two thousand and seven
28:19
Speaker 10: Congress put back this time limit and I think the
28:21
Speaker 10: putting back of the time limit suggests strongly that the
28:26
Speaker 10: intent of Congress was not to have endless interim appointments
28:31
Speaker 10: of US attorneys.
28:32
Speaker 1: Was that the intent of the framers as well, In
28:34
Speaker 1: other words, they wanted the Senate to advise and consent.
28:38
Speaker 1: So we have.
28:40
Speaker 10: Had Senate confirmed appointments since the start of the United
28:44
Speaker 10: States Constitution under the Appointments Clause, and interestingly, we've had
28:49
Speaker 10: statutes that provide for temporary appointments from about the same time.
28:54
Speaker 10: The very first Vacancies Act, which applied generally, was in
28:58
Speaker 10: seventeen ninety two, and there was another one in seventeen
29:01
Speaker 10: ninety five. There it gets a little tricky about kind
29:04
Speaker 10: of what were the time limits, because in the seventeen
29:07
Speaker 10: ninety five Act, Congress imposed the six month time limit
29:11
Speaker 10: on acting officials.
29:13
Speaker 1: Hear a lot of actings. Have US presidents been using
29:17
Speaker 1: interim positions more and more so I.
29:21
Speaker 10: Have done some research on recent administrations and looking at
29:26
Speaker 10: the very highest level of positions, so the heads of agencies,
29:31
Speaker 10: cabinet secretaries in particular, and definitely recent administrations, and that
29:37
Speaker 10: would include President Obama, President Trump's first term, and President Biden.
29:42
Speaker 10: Have heavily relied on acting officials, much more I would say,
29:48
Speaker 10: than their predecessors in terms of modern government.
29:52
Speaker 1: What's the reason for this? I know that President Trump
29:55
Speaker 1: in the past has said, you know, he likes the
29:57
Speaker 1: idea of it. Is it because it's difficult to get
29:59
Speaker 1: p people through the Senate? I mean, what's the reason
30:02
Speaker 1: then they're using it more.
30:04
Speaker 10: I think there are several reasons. The first is it
30:08
Speaker 10: takes time to nominate people. Though I will say that
30:11
Speaker 10: President Trump in his second term has a much faster
30:15
Speaker 10: nominations pace than he had in his first term. I
30:19
Speaker 10: mean six or sevenfold more nominations at one hundred daymark
30:24
Speaker 10: in his second term than in his first term. But
30:26
Speaker 10: nominations still takes time to find the people and to
30:29
Speaker 10: formally nominate them. There's a vetting that occurs, and I
30:32
Speaker 10: think for President Trump that betting has really focused on loyalty,
30:37
Speaker 10: whereas in other administrations might be focusing on ethical considerations,
30:42
Speaker 10: expertise and the like. And then there's the confirmation process.
30:47
Speaker 10: And so even as we have now and even as
30:50
Speaker 10: we did for President Biden, have a Senate controlled by
30:54
Speaker 10: the same party as the White House, it still takes
30:57
Speaker 10: time because individual senators. Even though there's no longer a
31:01
Speaker 10: sixty vote threshold to move a nomination to a confirmation
31:05
Speaker 10: vote that went away in November twenty thirteen, individual senators
31:09
Speaker 10: can still delay the confirmation's process, right, And we saw
31:14
Speaker 10: this with Senator Tuberbil in the Biden administration. We've seen
31:19
Speaker 10: this in other cases as well. Right, Democrats do it
31:21
Speaker 10: to Republicans, Republicans do it to Democrats, and that can
31:24
Speaker 10: slow it down. And so I think both the nominations
31:26
Speaker 10: and confirmation process make acting officials attractive. But I would
31:30
Speaker 10: also say that what I think is a large reason
31:34
Speaker 10: is that acting officials don't require Senate confirmation, and so
31:39
Speaker 10: you can pick people to serve in the temporary capacity
31:42
Speaker 10: that the Senate might not confirm. So in President Trump's
31:45
Speaker 10: first term, the Republicans, as reported by the media, did
31:49
Speaker 10: not want to confirm Ken Kucinelli to a senior post
31:53
Speaker 10: in the Department of Homeland Security, but through acting appointments
31:57
Speaker 10: and delegations of authority, mister kuch Janelli was able to
32:01
Speaker 10: serve in very high profile roles in DHS. And I
32:04
Speaker 10: think a similar story for Ed Martin that Republicans booked
32:09
Speaker 10: and he was able through the interim provision to serve,
32:12
Speaker 10: whereas you know, if he had just been put up
32:15
Speaker 10: as a nominee, not as an interim, he might not
32:17
Speaker 10: have gotten true.
32:18
Speaker 1: Has President Trump pushed the limits of the Vacancy's Act
32:23
Speaker 1: further than other presidents.
32:25
Speaker 10: I think the Vacancy's Act is pretty capacious. It allows
32:29
Speaker 10: the government to function. I think the Vacancies Act should
32:32
Speaker 10: be reformed in certain ways because I think it allows
32:35
Speaker 10: more than perhaps what we want for an accountable government.
32:39
Speaker 10: But I think in this term, President Trump is really
32:43
Speaker 10: pushing an argument that no previous president has pushed, which
32:47
Speaker 10: is that he believes that if the Vacancy's Act does
32:50
Speaker 10: not apply, he has inherent article to authority to name
32:55
Speaker 10: acting officials. And this has come up in the Inner
32:58
Speaker 10: America Foundation and the African Development Foundation. These are entities
33:02
Speaker 10: not covered by the Vacancies Act, where President Trump has
33:06
Speaker 10: named acting officials to Senate confirmed Board positions relying on
33:12
Speaker 10: claimed inherent article to authority. It seems with the firing
33:16
Speaker 10: of the Librarian of Congress that if the Library of
33:19
Speaker 10: Congress is not subject to the Vacancies Act, and I
33:21
Speaker 10: don't think it is, President Trump, the White House is
33:24
Speaker 10: indicated that there is Article two authority to name an
33:27
Speaker 10: acting librarian, and I think this is an outrageous claim.
33:31
Speaker 10: We have an appointments clause, we have a recess appointments clause.
33:34
Speaker 10: It is true that the Vacancies Act and specific agency
33:37
Speaker 10: provisions like section five forty six for interim US attorneys
33:41
Speaker 10: do allow vast use of temporary appointments, but outside of those,
33:46
Speaker 10: presidents need to rely on the appointments clause or the
33:49
Speaker 10: recess appointment.
33:50
Speaker 1: Some legal experts have suggested that defendants who are prosecuted
33:55
Speaker 1: by a successive interim US attorney like Pero could challenge
34:00
Speaker 1: their prosecutions based on claims that she's serving in the
34:05
Speaker 1: role improperly.
34:07
Speaker 10: I think they would definitely have standing to sue, and
34:10
Speaker 10: I think their argument would be that under five forty six,
34:14
Speaker 10: successive one hundred twenty day appointments are not allowed. And
34:18
Speaker 10: I think that is a plausible argument. I just don't
34:21
Speaker 10: think it's a winning argument. I think that courts will
34:25
Speaker 10: look at the text. Right as Justice Kagan says, we're
34:28
Speaker 10: all textless now, that the courts will look at the
34:31
Speaker 10: text and see that successive one hundred and twenty day
34:34
Speaker 10: appointments are not barred. It's happened in the past and permitted. Now,
34:39
Speaker 10: that doesn't mean it shouldn't change. I mean, Congress could
34:42
Speaker 10: amend five forty six to make it clear that you
34:46
Speaker 10: get one one hundred twenty day appointment, then the district
34:49
Speaker 10: court gets to choose. And then I should note that
34:52
Speaker 10: there is an alternative to these successive one hundred twenty
34:55
Speaker 10: day appointments. While a nomination might be pending to a
34:59
Speaker 10: US attorney's lot, is that I believe that the Federal
35:02
Speaker 10: Vacancy's Reform Act is available for temporary appointments to these positions. Now,
35:08
Speaker 10: the constraint why I think the Trump administration doesn't want
35:12
Speaker 10: to turn to the Vacancies Act is that under the
35:15
Speaker 10: Vacancy's Act, you can't just choose anyone. You can't choose
35:18
Speaker 10: an outsider like the current person. You can't choose an
35:22
Speaker 10: outsider to come in as an acting US attorney. You
35:26
Speaker 10: either need to choose someone who is the first assistant
35:29
Speaker 10: to the US Attorney right, which is typically a career person.
35:33
Speaker 10: You need to choose someone who has Senate confirmed already
35:36
Speaker 10: to another position, so it has already kind of gone
35:38
Speaker 10: through the Senate process. Or you have to choose someone
35:42
Speaker 10: who was in the agency for at least ninety days
35:45
Speaker 10: in the year before the vacancy.
35:47
Speaker 1: So finally, you think there needs to be reform here.
35:51
Speaker 10: I think the laws governing temporary appointments are pretty broad
35:56
Speaker 10: and likely too broad. On the other hand, we want
36:01
Speaker 10: the government to function. We don't want the government to
36:04
Speaker 10: come to a standstill. And so finding the balance between
36:09
Speaker 10: getting Senate confirmed appointments through a dysfunctional appointments process and
36:15
Speaker 10: having the government function is tricky. And sometimes we're on
36:20
Speaker 10: the right side of the balance and sometimes we're on
36:23
Speaker 10: the wrong side of the balance. And so I think
36:26
Speaker 10: that Congress really has a role to play in constraining
36:30
Speaker 10: the use of acting an interim appointment.
36:33
Speaker 1: Well, a study on vacancies showed that President George W.
36:36
Speaker 1: Bush didn't nominate anyone in thirteen percent of vacant Senate
36:41
Speaker 1: confirmed roles in federal agencies. President Barack Obama didn't nominate
36:46
Speaker 1: anyone in fifteen percent of those roles, and President Trump
36:51
Speaker 1: in his first administration didn't nominate anyone in twenty six
36:55
Speaker 1: percent of those roles. So it's a growing trend. Thanks
36:59
Speaker 1: so much, Ann, that's professor and Joseph O'Connell of Stanford Law.
37:03
Speaker 1: And that's it for this edition of The Bloomberg Law Show.
37:06
Speaker 1: Remember you can always get the latest legal news on
37:08
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37:12
Speaker 1: and at www dot Bloomberg dot com slash podcast Slash Law,
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Speaker 1: And remember to tune into The Bloomberg Law Show every
37:21
Speaker 1: weeknight at ten pm Wall Street Time. I'm June Grosso
37:25
Speaker 1: and you're listening to Bloomberg