Decisions on content moderation and time limits for lawsuits

NICK EICHER, HOST: Coming up next on The World and Everything in It: Supreme Court overtime.

Our colleague Mary Reichard has been poring over the decisions and has analysis of two more of the court’s key cases.

MARY REICHARD: This first opinion arises from efforts by states to curb how social media platforms moderate content.

To refresh your memory, listen to Florida Governor Ron DeSantis three years ago sign into law a bill that tried to put restrictions on that:

DESANTIS: Some of our biggest media conglomerates, who claim to be avatars of the First Amendment and free exchange of ideas, they've really become cheerleaders for censorship. If something doesn't fit the overriding narrative, then in their view it's best that you edit it out of existence, rather than actually tell people the truth….

Texas passed a similar bill. Each was in response to social media platforms shutting down conservative voices, perhaps none as illustrative as when Twitter suspended President Donald Trump’s account after the Capitol riot. Also removed or hidden were posts related to the 2020 election and posts questioning the CDC’s pandemic advice.

All nine justices agreed not to decide the merits.

This comment by Justice Clarence Thomas during oral argument in February hinted at what was to come:

JUSTICE THOMAS: We're using broad terms like "content moderation," throughout the briefs, you have "shadow banning," "deprioritizing," and all sorts of things. And I guess, with these facial challenges, I always have a problem that we're not talking about anything specific.

I called up the Associate Dean of Regent University School of Law to get some more analysis of what the court decided.

Here’s Brad Jacob on the trouble that began in the lower courts:

BRAD JACOB: They didn't ask the right questions. And so the Supreme Court sent it back and essentially said, try again. Look more into the real questions that are underlying this case. So in a sense, it was a bit of a smackdown for both of the courts of appeals.

The majority relied upon a decision from 1995 called Hurley versus Irish-American Gay, Lesbian and Bisexual Group of Boston. That ruling said the state of Massachusetts could not compel parade organizers to include the LGBT group that wanted to convey its own message.

The First Amendment prevents that compulsion, because doing so would “alter the expressive content of the parade.” It was the prerogative of the parade organizers to exclude whomever they wanted to exclude.

That applies to social media platforms, as well.

JACOB: …because it's a private platform, because it's private speech. If I want to create a new social media tomorrow, and I only post the words of Donald Trump, or I only post the words of Joe Biden, or I only post the words of Pee Wee Herman, I mean, that's my business. That'my site, and I can put that up and do that. I can speak any way that I want to, and just because Facebook and X and Instagram and Truth Social are big, doesn't change that principle.

This dispute will no doubt wind up back at the high court, and Jacob sees how the eventual resolution cuts both ways … meaning it affects Governor Ron DeSantis and the Florida legislature the same way it affects California Governor Gavin Newsom.

JACOB: And then you go over and look at Gavin Newsom and his legislature in California passing a law saying that pro life crisis pregnancy centers have to put up big signs on the wall about where to go to get an abortion. It's the same mindset that the government should decide who wins and force people to think that way and shut up those who disagree. And I think when this all all plays out for the most part, the social media platforms are going to be free to choose what their message is.

Justice Clarence Thomas wrote a concurrence that points in the direction of viewing social media platforms more as common carriers, like public utilities or transportation companies. That way, they could be subject to greater regulation.

The next opinion dovetails with the landmark decision on government regulation that we analyzed on Monday—the so-called Chevron Doctrine reversed last week. Chevron was the court-created precedent from 40 years ago that let federal agencies essentially fill in the gaps of vague legislation.

This case was a question of how much time you have to sue an agency.

A fact refresher: A truck stop and convenience store in North Dakota opened for business six years ago. It accepts debit card payments. Other retailers had already sued over this, arguing those debit card fees set by the Federal Reserve were too high.

So the truck stop joined in that litigation, but the government said, “too late.” The relevant federal law is the Administrative Procedure Act, and that says you have six years to sue from the time the rule was made.

Well, not so much as it turns out. Corner Post’s lawyer Bryan Weir had the winning argument back in February:

BRYAN WEIR: Corner Post opened for business in 2018. Since then, it's paid several hundred thousand dollars in debit card fees that it thinks are unlawful. But the government says that Corner Post's clock to challenge those fees actually started in 2011, seven years before Corner Post pumped a single gallon of gas. The government is wrong. Corner Post's clock started when it swiped its first debit card and paid its first fee.

A straightforward analysis.

I called up lawyer Kara Rollins with the New Civil Liberties Alliance to talk about it. The group filed a friend of the court brief in support of the truck stop.

KARA ROLLINS: The bottom line says that for businesses and individuals like Corner Post who come into being after a regulation is in place, they can sue if that regulation harms them.

I asked her about the dissent by Justice Ketanji Brown Jackson, joined by Elena Kagan and Sonia Sotomayor. Jackson called the reasoning of the majority “flawed” and “staggering” … and suggested that now there is no limitation on time frames to sue over agency regulations.

ROLLINS: And I think that the dissent is making a lot of nothing, or it's ignoring, either deliberately or intentionally, some of the limitations that the majority has explicitly said is there. And so I think what I'm seeing a lot in the commentary, and I think was somewhat evident in the dissent, is that there's this idea that this is just opening the door to every challenge under the sun, and it's simply not.

Rollins pointed out that familiar theme that’s arisen during this term of the Supreme Court: Congress can change this if it wants to—but it’s up to Congress.

And as for the truck stop owners, Corner Post? What’s next?

ROLLINS: This is the cruelest part of winning a Supreme Court case. You win the Supreme Court, you have to go back down to the the lower courts and actually get to litigate that.

What’s that quote? The wheels of justice turn slowly but grind exceedingly fine.

I’ll be back tomorrow to analyze the last two opinions on our docket with WORLD’s Steve West.

Reporting for WORLD, I’m Mary Reichard.

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