The Cyberlaw Podcast: President DeSantis’s First Supreme Court Nominee

Stewart Baker
Tuesday, September 27, 2022, 12:23 PM

The latest episode of the Cyberlaw Podcast.

Published by The Lawfare Institute
in Cooperation With

This episode features a much deeper, and more diverse, examination of the Fifth Circuit decision upholding Texas’s social media law. We devote the last half of the episode to a structured dialogue about the opinion between Adam Candeub and Alan Rozenshtein. Both have written about it already, Alan critically and Adam supportively. I lead off, arguing that, contrary to legal Twitter’s dismissive reaction, the opinion is a brilliant and effective piece of Supreme Court advocacy. Alan thinks that is exactly the problem; he objects to the opinion’s grating self-certainty and refusal to acknowledge the less convenient parts of past case law. Adam is closer to my view. We all seem to agree that the opinion succeeds as an audition for Judge Andrew Oldham to become Justice Oldham in the DeSantis Administration.  

We walk through the opinion and what its critics don’t like, touching on the competing free expression interests of social media users and of the platforms themselves, whether there’s any basis for an injunction today, given the relative weakness of the overbreadth argument and the fundamental disagreement over whether “exercising editorial discretion” is a fundamental right under the first amendment or just an artifact of older technologies. Most intriguing, we find unexpected consensus that Judge Oldham’s (and Clarence Thomas’s) common carrier argument may turn out to be the most powerful point in the opinion and when the case reaches the Court.

In the news roundup, we focus on the Congressional sprint to pass additional legislation before the end of the Congress. Michael Ellis explains the debate between the Cyberspace Solarium Commission alumni and business lobbyists over enacting a statutory set of obligations for systemically critical infrastructure companies. Adam outlines a strange-bedfellows bill that has united Sens. Amy Klobuchar (D-Minn.) and Ted Cruz (R-Texas) in an effort to give small media companies and broadcasters an antitrust immunity to bargain with the big social media platforms over the use of their content. Adam is a skeptic, Alan less so.

The Pentagon, reliably braver when facing bullets than a bad Washington Post story, is performing to type in the flap over fake social media accounts. Michael tells us that the accounts pushed pro-U.S. stories but met with little success before Meta and Twitter caught on and kicked them off their platforms. Now the Department of Defense is conducting a broad review of military information operations. I predict fewer such efforts and don’t mourn their loss.

Adam and I touch on a decision of Meta’s Oversight Board criticizing Facebook’s automated image takedowns. I offer a new touchstone for understanding content regulation at the Big Platforms: They just don’t care, so they’ve turned to whole project over to second-rate AI and second-rate employees.

Michael walks us through the Department of the Treasury’s new flexibility on sending communications software and services to Iran

And, in quick hits, I note that:

Russian botmasters have suddenly discovered that extradition to the U.S. may be better than going home and facing mobilization.

Download the 423rd Episode (mp3) 

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The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets.

Stewart A. Baker is a partner in the Washington office of Steptoe & Johnson LLP. He returned to the firm following 3½ years at the Department of Homeland Security as its first Assistant Secretary for Policy. He earlier served as general counsel of the National Security Agency.

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