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2,002 3 3 0 4 4 5 state of Missouri at all versus Joseph R Biden Jr at all.

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Mr. Tenney, you may proceed.

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Thank you, and may it please the court.

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Plaintiffs would be entitled to a preliminary injunction in this case if

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they could demonstrate that a threat directed at conduct by social media

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companies causing them irreparable injury.

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They have not made any such showing despite months of discovery.

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The district court nonetheless entered a preliminary injunction and

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that was erroneous for several reasons.

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District court exceeded the bounds of a concrete case or controversy under

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Article 3 and impugned government discussion of issues of public concern.

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The court's injunction cannot be reconciled with principles of equity and

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cannot be reconciled with the requirements of Rule 65 of specificity.

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To give just a few examples, plaintiffs have urged, for example,

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that if there were a natural disaster and there were untrue statements

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circulating on social media that were damaging to the public interest,

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the government would be powerless under the injunction to discourage

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social media companies from further disseminating those incorrect statements.

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To take another example, plaintiffs urge that if in the course of a law

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enforcement investigation, a government official were to conclude that it was

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likely, although not certain, that posts on social media were part of a criminal

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conspiracy, for example, regarding human trafficking, that the government official

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would be powerless to bring those posts to the social media company's attention.

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These are just some examples.

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So you do not believe that either of those are covered by the exception or

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exclusion specifically contained in the injunction?

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Well- Those examples would not be covered by any of the exclusions?

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That goes to the Rule 65 problem, Your Honor.

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We don't know whether they are.

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The plaintiffs have argued that they're not.

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So at best- Where have they done that?

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That said your hypos would not be covered?

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I believe in the stay opposition and I think also in their brief.

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I mean, they say that what the government can't do is discourage

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the posting on social media.

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I mean, the exceptions are very unclear.

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And the carve out for

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permissible public government speech plaintiffs have argued in their response

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brief covers only things that aren't otherwise covered by the injunction.

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They don't think that carve out does anything at all.

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We specifically raised the question of whether it was uncertain.

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They say the district court said that if it was uncertain,

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then the government can't go after it.

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So, and these are examples.

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These are things that they have no standing to challenge,

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don't cause them irreparable injury, and that are wrong on the merits.

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Or it said that or the plaintiffs told you that?

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I'm sorry, who is the they?

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Who can't go after it?

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That was confusing.

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I apologize, Your Honor.

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The plaintiffs citing the district court's opinion have said that they

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can strew the injunction to mean that if it is uncertain whether conduct is criminal,

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then it is not covered by the exemption.

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Now frankly, I'm not sure whether that's true or not.

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Our argument in this court is that the injunction is too vague under Rule 65.

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So I'm not gonna tell you that it is or it isn't, that's part of the problem.

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But the fact that the plaintiffs say that it is illustrates both the vagueness

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concern and the overbreath concern and the way those two interact.

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Now the problem here, just to be clear, is not just overbreath and vagueness.

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It's more fundamental than that.

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The reason the district court had so much difficulty crafting an injunction is that

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the district court didn't actually identify specific conduct of the government

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that would properly be enjoined.

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The district court took a broad brush approach,

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saying finding all sorts of things that the government did that it didn't like.

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And then recognizing presumably that that was too broad,

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then started trying to carve things out.

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But that's wrong in a way more fundamental than just crafting an injunction.

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That's wrong because what the district court should have been doing is looking

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for specific things that the government was doing, targeting specific actions by

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social media companies, causing irreparable injury to these plaintiffs.

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And if it found any, it could enjoin those.

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But it didn't find any, that's the problem.

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You can go through the district court's opinion and look for something like that.

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Or you can go through the voluminous record in this case and

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look for something like that and you won't find it.

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And that is the fundamental problem here with this injunction.

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So is it your position that the district court could enter

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an appropriate injunction here if this has just not been crafted well?

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No, your honor, precisely the opposite.

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My point is that if the district court were to attempt to craft an appropriate

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injunction, it would have to find some conduct that was properly enjoined.

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Conduct that both threatened to irreparably harm the plaintiffs and

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was violated the Constitution.

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So if the government, by the government, I mean high level officials at various

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agencies in the administration were

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asking social media people in a coercive manner,

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so to propagate certain things that the government knew were untrue.

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And to de-amplify certain things that it knew was true, or

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didn't know for sure one way or the other, but didn't fit its message.

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Would that be able to be enjoined?

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Like we think of the, there's a lot of COVID information in this record,

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about COVID for example.

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If I understood the question correctly, one of the premises of the question was

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that the government was doing it in a coercive manner.

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And I think if the government was doing something like that in a coercive manner,

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then that could be the subject of a proper injunction.

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The problem is that what you would have to do is say,

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here is what the government is doing that's coercive, and I'm enjoining that.

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How do you define coercive?

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I mean, coercive, I don't think there's too much disagreement on this point.

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That coercive is where a reasonable person would construe it to be backed by

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a threat of government action against the party if it didn't comply.

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I mean, that's sort of how the district court described it.

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The district court went on to talk about significant encouragement, and

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we have major disagreements with the district court there.

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But the examples that in the case law, for example, banned in books,

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it's sending a letter and sort of threatening prosecution if you don't

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comply with what the government wants.

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Are the recent findings and

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disclosures from recent US congressional proceedings properly before us to consider?

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No, your honor, those aren't part of the record.

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I take it you're talking about materials that were attached to an amicus brief.

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Those are not part of the record, weren't before the district court.

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There's been no effort to enter those into the record in this case.

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So-

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We can't take judicial notice of findings by Congress?

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I mean, you could take judicial-

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Particular committees of Congress, are we allowed to take judicial notice of that?

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You could take judicial notice that a committee of Congress has made a finding,

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if they've made a finding, that the fact of the finding,

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you can't take judicial notice that everything in the finding is necessarily

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true in binding on the court, and it certainly wouldn't justify the injunction

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that the district court issued in this case.

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I mean, my answer to your question,

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which was about whether they're properly before the court, is that they're not.

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And I would love to stop there, but if the court is interested,

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I'm happy to discuss the materials in there.

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I don't think they changed the, even if they were properly before the court,

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I don't think they changed the picture very much.

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I mean, what they're talking about, as I understand it, mostly relates to, I mean,

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the first part of it was about COVID, of the amicus brief and the attached materials.

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It's not clear that that's ongoing.

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The district court didn't seem to think it was and

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thought the government was gonna keep going on other subjects.

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So there's that problem.

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But then, even on its face, the kind of pressure that's being discussed there, and

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this has been discussed in a number of cases in the Ninth Circuit in Kennedy

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versus Warren and O'Hanley in the DC Circuit,

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in a series of cases culminating in Penthouse, which was discussed in our brief.

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The sort of pressure that we're talking about is relates to

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the government is generically gonna be angry.

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The government might make public statements against somebody.

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If you look at those materials, they reflect a back and forth.

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Facebook sometimes is willing to do what the government wants and sometimes isn't.

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Facebook refers to pressure from the administration and the press,

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administration and others.

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These are all, I mean, the fundamental First Amendment point,

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I think that the district court misunderstood here, is that when the

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government, when the president or representatives of the president or

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federal agencies come out and say things, they say, here's what we think is true,

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and here's what we think is not true.

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Or here's what we think is a good course of conduct, and

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here's what we think is a not good course of conduct.

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Yes, that might influence people.

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People may want to get on the president's good side or

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people might want just fine.

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You say.

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The way you say it is very, we're gonna sit down and

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have a meeting or we'll pass out some document.

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But what appears to be in the record are these irate messages from time to time

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from high ranking government officials that say, you didn't do this yet.

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And that's my toning down the language.

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You didn't do this yet.

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Well, haven't you done this yet?

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And so it's like jump and how high.

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So there's some examples like that in the record.

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So it's not like we think this would be a good public policy and

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we wanna explain to you why that would be a good policy.

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There seems to be some very close working relationship that they're having these.

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This isn't being done fast enough.

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Like it's a supervisor complaining about a worker.

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Do you have any comment on that?

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I have several comments on that, your honor.

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I'd like to comment both directly on the materials that you're talking about and

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also about their- Which are in the record.

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This is not the extra record.

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No, I understand.

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I understand.

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I'm sorry to interrupt.

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I understand.

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I understand what you're saying.

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I'm talking about the record too.

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And I also wanna put them in the context of this case.

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So I hope I have an opportunity to do both.

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Please do.

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Both talking directly.

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There was a back and forth.

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Sometimes it was more friendly.

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Sometimes people got more testy.

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There were circumstances in which everyone saw eye to eye.

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There were circumstances in which they disagreed.

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If you were saying we're gonna do this, if you don't do this,

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we're gonna impose some penalty, some government regulation or sanction on you.

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That's not the way you would go about it.

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You wouldn't say I'm really mad.

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You would just say do this or else and the or else would be clear.

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There is no indication in this record of what the or else is.

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What are they gonna do?

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And then the other point I would- You have to always have the or

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else at the same time if you have a long ongoing relationship.

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If you're having this really long relationship,

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can't the district court find and make a finding,

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a factual finding that this is enough?

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Because you think about, and I'm certainly not equating the federal

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government to this, but this is an analogy, certainly probably an inapt analogy.

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So if you'll excuse me.

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Like if somebody is in these movies that we see with the mob or something,

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they don't say and spell out things, but they have these ongoing relationships.

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And they never actually say go do this or

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else you're going to have this consequence.

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But everybody just knows because they have and

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I'm certainly not equating the federal government with anybody in illegal,

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organized crime.

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But there are certain relationships that people know things without

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always saying the or else and that are familiar enough.

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Your honor, our position is not that the government has to say the or else explicitly.

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That's not our position.

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And that's not true.

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Everybody agrees on that.

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But it has to be there in the background and nobody has identified what the or

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else is with two exceptions that I want to discuss.

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One is amendments to section 230 of the Communications Decency Act and

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the other is some reference to antitrust law.

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Now the idea that if you don't do exactly what this White House staffer says about

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this particular thing, the President is unilaterally going to amend section 230 or

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amend the antitrust laws is farfetched.

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And it is not permissible for the district court to make a factual finding

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that that's the case.

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And the other point that I would, two other points I would make,

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which more in putting it in context.

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The things that they describe as the most harsh and

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irate are not about conduct that causes any injury to these plaintiffs.

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They're about the President's own Instagram account.

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They're about efforts to obtain information from Facebook.

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The plaintiffs have not raised a circumstance where they said,

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here's, that sort of tone or

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anger was used in connection with the things that are actually before

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the court in this case.

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The other thing I would like to add just in terms of putting it in context,

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if the district court, we think the district court was wrong to enter any

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injunction for some of the reasons that I've specified.

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But if the district court thought there are a few things that happened here,

245
00:14:49,200 --> 00:14:51,760
you still have to figure out what they were and we don't think there were any.

246
00:14:51,760 --> 00:14:55,640
But if there are a few things that happened here that went over the line,

247
00:14:55,640 --> 00:14:58,960
then it would have to say, don't cross that line anymore.

248
00:14:58,960 --> 00:15:01,800
It would have to come up with some, it would have to say both,

249
00:15:01,800 --> 00:15:05,600
we think this is specific conduct, I can identify with specificity,

250
00:15:05,600 --> 00:15:08,600
it's creating ongoing irreparable harm, and I'm gonna tell you,

251
00:15:08,600 --> 00:15:10,200
you can't do this anymore.

252
00:15:10,200 --> 00:15:16,520
Mr. Kutini, your briefs really from page one, they focus intensely,

253
00:15:16,520 --> 00:15:22,600
they focus intently on government's ability to make statements to the public.

254
00:15:22,600 --> 00:15:26,320
At the podium today, you've mentioned your government may wanna come out and

255
00:15:26,320 --> 00:15:29,120
publicly say this or that.

256
00:15:29,120 --> 00:15:33,560
But I'm struck by the fact that this case involves government's private

257
00:15:33,560 --> 00:15:37,800
communications with social media companies, and it seems perfectly fine.

258
00:15:37,800 --> 00:15:44,000
In my view, for government to call out publicly, someone for posting or

259
00:15:44,000 --> 00:15:49,520
for publishing something that government believes is false or

260
00:15:49,520 --> 00:15:56,520
believes is dangerous, I think that passes First Amendment muster with flying colors.

261
00:15:56,520 --> 00:16:02,400
But here you have government in secret, in private, out of the public eye,

262
00:16:02,400 --> 00:16:11,080
relying on, as Judge Outrod described, fairly unsubtle kind of strong arming,

263
00:16:11,080 --> 00:16:15,680
unveiled or not so unveiled threats.

264
00:16:15,680 --> 00:16:18,560
That's a really nice social media platform you got there.

265
00:16:18,560 --> 00:16:20,480
It'd be a shame if something happened to it.

266
00:16:25,080 --> 00:16:26,400
Any response to that?

267
00:16:26,400 --> 00:16:28,000
Yes, two responses.

268
00:16:28,000 --> 00:16:32,280
First, I'm glad to hear, although I obviously won't try to hold you to it.

269
00:16:32,280 --> 00:16:36,880
The first part of what you said, the district court enjoined a lot of things

270
00:16:36,880 --> 00:16:40,560
that you just described as complying with the First Amendment by flying colors.

271
00:16:41,760 --> 00:16:49,800
And so at a minimum, that part of the injunction under the premises of your

272
00:16:49,800 --> 00:16:53,640
question, which again I'm not gonna try to hold you to, that would be off the table.

273
00:16:53,640 --> 00:16:57,000
Do you think government public speech is enjoined here?

274
00:16:57,000 --> 00:16:57,920
Is that what you're saying?

275
00:16:57,920 --> 00:17:01,080
Cuz if it is, that's important for us to know.

276
00:17:01,080 --> 00:17:03,120
Is that the purpose of the question?

277
00:17:03,120 --> 00:17:05,400
And I want you to answer his question on the front end.

278
00:17:05,400 --> 00:17:09,000
But what's the part that you think is good in his question that you think-

279
00:17:09,000 --> 00:17:13,440
I mean, the district court said permissible public government speech

280
00:17:13,440 --> 00:17:16,920
on matters of public concern was exempt.

281
00:17:16,920 --> 00:17:19,600
I have no idea what that means.

282
00:17:19,600 --> 00:17:23,880
The inclusion of the word permissible seems to make it impossible for

283
00:17:23,880 --> 00:17:24,680
us to figure it out.

284
00:17:24,680 --> 00:17:29,600
The plaintiffs have identified some public speech that they think is enjoined.

285
00:17:29,600 --> 00:17:33,640
So if it just said public speech is exempt, then-

286
00:17:33,640 --> 00:17:35,920
Well, that would solve part of the problem.

287
00:17:35,920 --> 00:17:37,440
Not all of it, part of it.

288
00:17:37,440 --> 00:17:38,880
Okay, I'm sorry, go ahead.

289
00:17:38,880 --> 00:17:43,200
So if I could turn, that is not what it says.

290
00:17:43,200 --> 00:17:44,400
It says permissible.

291
00:17:44,400 --> 00:17:46,080
And the plaintiff's view is permissible,

292
00:17:46,080 --> 00:17:48,120
that is that that exception literally does nothing.

293
00:17:48,120 --> 00:17:50,680
So I just wanna put that out there.

294
00:17:50,680 --> 00:17:56,040
Then as to the rest of it, I mean,

295
00:17:56,040 --> 00:17:59,960
there were sort of several things baked into your question.

296
00:17:59,960 --> 00:18:05,080
There's sort of whether it's private and

297
00:18:05,080 --> 00:18:09,200
whether it's coercive, those aren't the same thing.

298
00:18:09,200 --> 00:18:12,960
I'll give you an example of private communications that it would be surprising

299
00:18:12,960 --> 00:18:14,960
to me if they were enjoined.

300
00:18:17,160 --> 00:18:21,520
The CISA switch boarding efforts where state and local governments,

301
00:18:21,520 --> 00:18:27,240
including the plaintiff states, would report things to CISA that they think are

302
00:18:27,240 --> 00:18:31,200
inaccurate election information, and CISA would pass those along

303
00:18:31,200 --> 00:18:33,200
to the social media companies.

304
00:18:33,200 --> 00:18:38,200
I don't see any basis for saying that violates the First Amendment.

305
00:18:38,200 --> 00:18:41,920
If the CDC, if Facebook comes to the CDC and says,

306
00:18:41,920 --> 00:18:44,200
we're trying to figure out whether these posts are true,

307
00:18:44,200 --> 00:18:47,920
can you give us scientific information that would bear on that question?

308
00:18:47,920 --> 00:18:52,360
It would surprise me if the only way CDC would respond would be publicly rather

309
00:18:52,360 --> 00:18:53,120
than privately.

310
00:18:53,120 --> 00:19:00,200
Well, isn't it true though that time and again, that what government at first

311
00:19:00,200 --> 00:19:06,840
may label misinformation or disinformation or malinformation,

312
00:19:06,840 --> 00:19:11,480
always with great fervor and certitude and indignation,

313
00:19:11,480 --> 00:19:17,400
is sometimes, lo and behold, vindicated as true information.

314
00:19:17,400 --> 00:19:20,600
Ideas that were labeled false or later proven true.

315
00:19:22,360 --> 00:19:26,760
If that happens, that doesn't change the fact that if social media companies are

316
00:19:26,760 --> 00:19:31,000
making determinations, whether we like it or not, they're making determinations

317
00:19:31,000 --> 00:19:35,720
about what to include on their platforms and what algorithms to use to make some

318
00:19:35,720 --> 00:19:37,920
of it more prominent and less prominent.

319
00:19:37,920 --> 00:19:43,120
And the social media companies have decided, and

320
00:19:43,120 --> 00:19:49,240
there's basically no evidence in the record that this decision was coerced by anybody.

321
00:19:49,240 --> 00:19:54,200
They decided that they wanted in some circumstances to have those decisions be

322
00:19:54,200 --> 00:20:00,000
informed by government experts' views about what was true or false or

323
00:20:00,000 --> 00:20:01,600
what was harmful or not harmful.

324
00:20:01,600 --> 00:20:04,720
That doesn't mean they were turning over the reins to the government.

325
00:20:04,720 --> 00:20:06,480
They were asking the government for information.

326
00:20:06,480 --> 00:20:10,520
And now, as Your Honor says, maybe sometimes the government is wrong.

327
00:20:10,520 --> 00:20:15,960
What if it's lying, does it matter if it's wrong or lying between the two?

328
00:20:15,960 --> 00:20:22,280
Like if the government knows secretly that certain things do have health

329
00:20:22,280 --> 00:20:25,360
consequences or don't have health consequences, but

330
00:20:25,360 --> 00:20:29,040
doesn't want that to be the message, just hypothetically.

331
00:20:29,040 --> 00:20:37,200
And so then says the opposite to the social media with the idea to propagate that message.

332
00:20:37,200 --> 00:20:43,200
Does that matter whether they're lying or wrong between the two or not really?

333
00:20:43,200 --> 00:20:46,640
That's a very different claim than a claim that it's coercive,

334
00:20:46,640 --> 00:20:50,640
that they're somehow taking over the will of the social media company.

335
00:20:50,640 --> 00:20:52,520
Isn't that a claim in this case?

336
00:20:52,520 --> 00:20:53,680
Am I wrong?

337
00:20:53,680 --> 00:20:58,920
I thought, and I'm not opining on what the truth of the matter is.

338
00:20:58,920 --> 00:21:00,600
Please don't misunderstand me.

339
00:21:00,600 --> 00:21:04,840
But I thought the claim in the case is, for example, and

340
00:21:04,840 --> 00:21:10,640
I think that part of that great Barrington Declaration is part of this case.

341
00:21:10,640 --> 00:21:11,640
Is that right?

342
00:21:11,640 --> 00:21:12,160
Yeah.

343
00:21:12,160 --> 00:21:15,560
And that these scientists were not saying the wrong thing.

344
00:21:15,560 --> 00:21:20,120
And the scientists of the government, the allegation is new that they weren't

345
00:21:20,120 --> 00:21:24,360
saying the wrong thing, but that they wanted to suppress that because it

346
00:21:24,360 --> 00:21:27,520
wouldn't be good for their other scientific message.

347
00:21:27,520 --> 00:21:31,440
I am not agreeing with that or disagreeing with that.

348
00:21:31,440 --> 00:21:32,960
But that's one of the allegations.

349
00:21:32,960 --> 00:21:35,320
And we're gonna give you more time because we haven't even talked about

350
00:21:35,320 --> 00:21:36,760
standing yet.

351
00:21:36,760 --> 00:21:38,720
Okay, thank you, Your Honor.

352
00:21:38,720 --> 00:21:42,320
With respect to the Great Barrington Declaration,

353
00:21:42,320 --> 00:21:46,760
I mean what the district court said, and I'm not sure whether the plaintiffs are

354
00:21:46,760 --> 00:21:51,200
saying that it was lying, I'm not aware of evidence in the record that it was.

355
00:21:51,200 --> 00:21:54,280
The place where deception came to the fore most prominently was with regard to

356
00:21:54,280 --> 00:21:56,360
the FBI, which I'll get to in a second.

357
00:21:56,360 --> 00:21:59,240
But with respect to the Great Barrington Declaration,

358
00:21:59,240 --> 00:22:03,760
what the district court said was that the government orchestrated what they called

359
00:22:03,760 --> 00:22:07,000
a takedown of the Great Barrington Declaration.

360
00:22:07,000 --> 00:22:11,360
Now what the email that it was quoting actually said was a published takedown of

361
00:22:11,360 --> 00:22:14,040
its premises, which is entirely different.

362
00:22:14,040 --> 00:22:19,920
And what the district court said was not the government was lying and

363
00:22:19,920 --> 00:22:21,560
that's why this is a problem.

364
00:22:21,560 --> 00:22:25,880
What the district court said was the problem is the government's motivation

365
00:22:25,880 --> 00:22:28,440
in making public statements, disagreeing.

366
00:22:28,440 --> 00:22:33,000
I mean, this is at the heart of what your colleague referred to earlier.

367
00:22:34,160 --> 00:22:37,840
This is where the government made public statements saying,

368
00:22:37,840 --> 00:22:40,680
we disagree with some of the statements in here.

369
00:22:40,680 --> 00:22:42,640
We don't think this is good policy.

370
00:22:42,640 --> 00:22:45,840
And the district court said that's unconstitutional.

371
00:22:45,840 --> 00:22:50,040
Now that just cannot be right.

372
00:22:50,040 --> 00:22:54,200
And then when you get to the FBI, which is where the deception theme came in,

373
00:22:54,200 --> 00:22:59,680
the thing that was allegedly deceptive was the FBI's refusal

374
00:22:59,680 --> 00:23:04,720
to comment on a pending FBI investigation.

375
00:23:04,720 --> 00:23:06,160
That's it.

376
00:23:06,160 --> 00:23:07,160
That's what the district court said.

377
00:23:07,160 --> 00:23:08,000
That's what the plaintiff said.

378
00:23:08,000 --> 00:23:08,560
That's the whole thing.

379
00:23:08,560 --> 00:23:09,840
I'm sorry, which one was this?

380
00:23:09,840 --> 00:23:11,560
This is the Hunter Biden investigation.

381
00:23:11,560 --> 00:23:13,200
There were questions about the laptop.

382
00:23:13,200 --> 00:23:15,240
The FBI said no comment.

383
00:23:15,240 --> 00:23:19,760
In the record, it's clear the reason the FBI said no comment was that the fact of

384
00:23:19,760 --> 00:23:24,480
that investigation was not public and the FBI doesn't comment on public investigations.

385
00:23:24,480 --> 00:23:26,000
Is it in the record?

386
00:23:26,000 --> 00:23:28,200
And honestly, I don't know.

387
00:23:28,200 --> 00:23:34,760
So please correct that they said, oh, you need to be very careful of these

388
00:23:34,760 --> 00:23:41,880
foreign sources in the same conversations to try to dissuade any follow up on that

389
00:23:41,880 --> 00:23:46,360
when allegedly there's a claim that they knew about that.

390
00:23:46,360 --> 00:23:51,600
Is that in this record or is that in the publicly available information that's in

391
00:23:51,600 --> 00:23:54,760
the world today that should not be considered?

392
00:23:54,760 --> 00:23:58,080
I'm not sure what the same conversation you're referring to is.

393
00:23:58,080 --> 00:24:00,120
With the social media people.

394
00:24:00,120 --> 00:24:10,600
The record reflects that the FBI generally expressed concerns about a type of

395
00:24:10,600 --> 00:24:16,840
investigation, I'm sorry, a type of conduct called hack and leak where you would obtain

396
00:24:16,840 --> 00:24:20,520
illicitly materials and then leak them.

397
00:24:20,520 --> 00:24:26,160
The record also reflects that the social media companies were independently already

398
00:24:26,160 --> 00:24:29,120
concerned about that, at least in the view of the FBI witness.

399
00:24:29,120 --> 00:24:36,000
And so the possibility of such a thing was discussed.

400
00:24:36,000 --> 00:24:37,600
The record reflects that.

401
00:24:37,600 --> 00:24:44,760
What's in the context of that laptop specifically since you mentioned it?

402
00:24:44,760 --> 00:24:48,040
I want to be careful about saying in the context of.

403
00:24:48,040 --> 00:24:53,680
There is testimony, there was public testimony in the record that someone had heard rumors

404
00:24:53,680 --> 00:25:00,880
that it had to do with Hunter Biden and then a subsequent clarification by the same person

405
00:25:00,880 --> 00:25:05,960
that those rumors did not come from the FBI.

406
00:25:05,960 --> 00:25:10,120
And so I just want to, I mean.

407
00:25:10,120 --> 00:25:16,400
At the end of the day, what the district court said and what this court is reviewing is that

408
00:25:16,400 --> 00:25:21,320
they warned of hack and leak operations, which is something I would submit that the government

409
00:25:21,320 --> 00:25:22,320
can do.

410
00:25:22,320 --> 00:25:28,600
This is a threat to our national potential foreign influence in American elections and

411
00:25:28,600 --> 00:25:31,600
the FBI can say we're worried that these sorts of things are going to happen.

412
00:25:31,600 --> 00:25:34,360
We think they've happened before.

413
00:25:34,360 --> 00:25:39,480
So the court can disagree and say that that's unconstitutional.

414
00:25:39,480 --> 00:25:43,960
If it's not done publicly, I would strongly urge the court not to do so.

415
00:25:43,960 --> 00:25:47,640
We're going to give each side five more minutes so we could just go through standing really

416
00:25:47,640 --> 00:25:48,640
quickly.

417
00:25:48,640 --> 00:25:55,000
You have made a lot of standing arguments that there was the lack of standing.

418
00:25:55,000 --> 00:26:03,520
Are there posts made by state officials that were allegedly censored in this manner?

419
00:26:03,520 --> 00:26:09,400
I get that you think it was not coercive, but assuming our spot that part, are there

420
00:26:09,400 --> 00:26:13,360
government official posts from state governments?

421
00:26:13,360 --> 00:26:18,960
And if so, does that, why doesn't that provide standing for the state officials?

422
00:26:18,960 --> 00:26:23,720
Okay, I believe there were three that the states identified, one of which I think there

423
00:26:23,720 --> 00:26:26,520
was even some dispute about whether it was really a state official.

424
00:26:26,520 --> 00:26:32,560
But there were three that they identified.

425
00:26:32,560 --> 00:26:37,480
I appreciate that you set aside the point that there's a dispute about whether that's

426
00:26:37,480 --> 00:26:39,440
really traceable to the government.

427
00:26:39,440 --> 00:26:44,680
The thing that's fatal to the state standing on this ground, which the other side didn't

428
00:26:44,680 --> 00:26:50,320
respond to at all in their briefing, is they have no allegation that they have any intention

429
00:26:50,320 --> 00:26:56,280
of making these similar, any other posts in the future.

430
00:26:56,280 --> 00:27:03,000
And so they would have to show in order to have standing that they have a future injury,

431
00:27:03,000 --> 00:27:05,800
ongoing injury attributable to government conduct.

432
00:27:05,800 --> 00:27:11,800
So you're saying the federal government is not going to censor, not going to suggest

433
00:27:11,800 --> 00:27:15,600
that a state government post be removed ever?

434
00:27:15,600 --> 00:27:18,320
Or you're saying state government people are never going to make posts?

435
00:27:18,320 --> 00:27:22,080
I don't understand what's not going to happen in the future.

436
00:27:22,080 --> 00:27:27,800
It's their burden to establish standing, and they would need to say, we intend to make

437
00:27:27,800 --> 00:27:29,280
posts, you know...

438
00:27:29,280 --> 00:27:33,920
Well, don't all state government people make posts all the time, constantly, just like

439
00:27:33,920 --> 00:27:35,400
federal government people?

440
00:27:35,400 --> 00:27:37,360
And that's what they do?

441
00:27:37,360 --> 00:27:41,320
Your Honor, if your point is that it should have been easy to make this allegation, I'm

442
00:27:41,320 --> 00:27:43,120
not sure why it helps them.

443
00:27:43,120 --> 00:27:46,920
But it's also relevant on what subjects they would make the posts, and the court would

444
00:27:46,920 --> 00:27:53,400
have to evaluate whether it is more than speculative that those posts would, in fact, be subject

445
00:27:53,400 --> 00:27:59,640
to both content moderation and content moderation that is based on conduct from the federal...

446
00:27:59,640 --> 00:28:03,000
That is based on conduct from the federal government that's being challenged here.

447
00:28:03,000 --> 00:28:06,480
And without even an allegation, here's what we plan to post on in the future.

448
00:28:06,480 --> 00:28:08,600
Here's why we think the government...

449
00:28:08,600 --> 00:28:12,080
We think it's going to be subject to content moderation, and here's why we think the government's

450
00:28:12,080 --> 00:28:16,760
conduct in this case that we're challenging is the thing that would cause it to be subject

451
00:28:16,760 --> 00:28:17,760
to content moderation.

452
00:28:17,760 --> 00:28:18,760
What if the state...

453
00:28:18,760 --> 00:28:27,720
Okay, the state elections person says, I think the federal government interferes in elections,

454
00:28:27,720 --> 00:28:32,000
and we need to protect our local elections?

455
00:28:32,000 --> 00:28:37,200
Would that be a post that could be interfered with?

456
00:28:37,200 --> 00:28:39,440
Your Honor, I don't...

457
00:28:39,440 --> 00:28:43,760
I mean, that goes to the substance of what the social media company's policies are going

458
00:28:43,760 --> 00:28:44,760
to be in the future.

459
00:28:44,760 --> 00:28:52,240
I mean, for standing purposes, I appreciate this colloquy because it highlights the problem.

460
00:28:52,240 --> 00:28:58,760
The way standing is evaluated is that people come forward with declarations and they say,

461
00:28:58,760 --> 00:29:02,560
here's what I wanna do, here's why I'm gonna have an injury in the future, and then a court

462
00:29:02,560 --> 00:29:07,280
evaluates whether they think that it's actually true that they'll have an injury in the future.

463
00:29:07,280 --> 00:29:10,640
And so to say, well, we're not gonna bother with the part where we say, here's what we

464
00:29:10,640 --> 00:29:15,160
wanna do in the future, that's just fatal to their standing on this ground.

465
00:29:15,160 --> 00:29:16,160
It's just...

466
00:29:16,160 --> 00:29:17,160
I mean, this is...

467
00:29:17,160 --> 00:29:22,920
They didn't say that they were gonna make these COVID posts about child vaccines in

468
00:29:22,920 --> 00:29:24,280
the future.

469
00:29:24,280 --> 00:29:25,280
Is that the problem?

470
00:29:25,280 --> 00:29:30,040
Isn't that one of the topics about...

471
00:29:30,040 --> 00:29:34,400
Wasn't it a state official about children's vaccines from Louisiana?

472
00:29:34,400 --> 00:29:35,400
Am I wrong?

473
00:29:35,400 --> 00:29:36,400
Is that not the fact?

474
00:29:36,400 --> 00:29:37,400
I apologize.

475
00:29:37,400 --> 00:29:42,600
I don't recall exactly what the posts are about and I don't wanna misrepresent by guessing.

476
00:29:42,600 --> 00:29:48,560
But if your question is, is the problem that the record is absolutely silent on whether

477
00:29:48,560 --> 00:29:52,880
they're gonna make more posts if they do on what subject and why they think those posts

478
00:29:52,880 --> 00:29:58,000
would be subject to content moderation at all, much less content moderation at the behest

479
00:29:58,000 --> 00:30:00,680
of the federal government, then I would say the answer to your question is yes, that is

480
00:30:00,680 --> 00:30:01,680
the problem.

481
00:30:01,680 --> 00:30:02,680
And if I could say one more thing about COVID.

482
00:30:02,680 --> 00:30:12,920
I mean, COVID's a great example of why past content moderation may not be evidence of

483
00:30:12,920 --> 00:30:18,400
future injury, much less imminent future injury that would give rise to a need for irreparable

484
00:30:18,400 --> 00:30:19,400
harm.

485
00:30:19,400 --> 00:30:24,920
A lot has changed in the world of COVID, both in terms of the social media platform's own

486
00:30:24,920 --> 00:30:25,920
policies.

487
00:30:25,920 --> 00:30:32,480
The state has stopped enforcing its COVID misinformation policy entirely without any

488
00:30:32,480 --> 00:30:34,280
retribution by the federal government.

489
00:30:34,280 --> 00:30:39,360
And the federal government's efforts with regard to COVID have changed with the end

490
00:30:39,360 --> 00:30:42,960
of the public health emergency and there's information in the record that the district

491
00:30:42,960 --> 00:30:47,240
court seemed to credit that some of the efforts that the federal government was engaged in

492
00:30:47,240 --> 00:30:49,840
with regard to COVID were no longer ongoing.

493
00:30:49,840 --> 00:30:50,840
And that would be relevant.

494
00:30:50,840 --> 00:30:54,560
If the state said, all we're gonna post about is COVID, then you would have to say, okay,

495
00:30:54,560 --> 00:30:57,360
is the fact that the federal government's doing less of this, that Twitter's not doing

496
00:30:57,360 --> 00:31:00,440
it at all, does any of that matter for standing?

497
00:31:00,440 --> 00:31:01,440
But we haven't even gotten that far.

498
00:31:01,440 --> 00:31:02,440
Okay.

499
00:31:02,440 --> 00:31:03,440
You're talking about the future.

500
00:31:03,440 --> 00:31:04,440
Let's talk about the present.

501
00:31:04,440 --> 00:31:05,440
Will you acknowledge that the government is still in regular contact with the social media

502
00:31:05,440 --> 00:31:06,440
platforms about moderating their alleged misinformation?

503
00:31:06,440 --> 00:31:22,760
Will you acknowledge that that is still going on?

504
00:31:22,760 --> 00:31:27,480
I would acknowledge that there is still some contact, whether the nature of it is identical

505
00:31:27,480 --> 00:31:33,280
to what has happened in the past is not, I wouldn't say that, but we're not arguing

506
00:31:33,280 --> 00:31:38,400
that the government has entirely stopped communicating with social media on this point, no.

507
00:31:38,400 --> 00:31:39,400
And now that...

508
00:31:39,400 --> 00:31:40,400
And not because a stay is in effect?

509
00:31:40,400 --> 00:31:41,400
Is that why?

510
00:31:41,400 --> 00:31:42,400
I mean, that's part of it also to the extent that the government has stopped communicating

511
00:31:42,400 --> 00:31:43,400
with social media.

512
00:31:43,400 --> 00:31:54,480
That's part of it also to the extent that we're doing things that were covered by the

513
00:31:54,480 --> 00:31:57,160
exemptions, that would have been okay too, but the stay makes it easy.

514
00:31:57,160 --> 00:31:58,160
So you are still...

515
00:31:58,160 --> 00:32:04,800
Not you personally, but the federal government is still continuing its day-to-day involvement.

516
00:32:04,800 --> 00:32:05,800
Is that right?

517
00:32:05,800 --> 00:32:06,800
Yeah.

518
00:32:06,800 --> 00:32:07,800
I'm not sure what day-to-day involvement is.

519
00:32:07,800 --> 00:32:09,400
We're not arguing that this case is moot.

520
00:32:09,400 --> 00:32:12,000
I mean, this is another problem with the district court's analysis.

521
00:32:12,000 --> 00:32:16,480
The district court's analysis of irreparable harm, talking about voluntary cessation and

522
00:32:16,480 --> 00:32:19,600
whether it's moot and whether they still have standing, that's not our argument.

523
00:32:19,600 --> 00:32:22,400
We're not saying all of this is over and nothing's happening anymore.

524
00:32:22,400 --> 00:32:26,280
But the point is, to show irreparable injury, you have to say, here's what's gonna happen

525
00:32:26,280 --> 00:32:28,080
imminently in the future.

526
00:32:28,080 --> 00:32:32,200
Here's why it's likely, not just non-speculative, that it's gonna happen.

527
00:32:32,200 --> 00:32:34,480
And then you have to make your showing with evidence.

528
00:32:34,480 --> 00:32:37,840
And that's just one of the many problems here.

529
00:32:37,840 --> 00:32:39,880
I'm over even my extended time.

530
00:32:39,880 --> 00:32:41,720
I'm happy to keep talking if there are more questions.

531
00:32:41,720 --> 00:32:42,720
Thank you.

532
00:32:42,720 --> 00:32:45,800
You have saved time for rebuttal, so we appreciate it.

533
00:32:45,800 --> 00:32:56,160
Thank you, Your Honor.

534
00:32:56,160 --> 00:32:57,160
You may proceed.

535
00:32:57,160 --> 00:32:58,160
Thank you, Your Honor.

536
00:32:58,160 --> 00:33:01,960
It may please the court, John Sauer of Louisiana, on behalf of all the plaintiffs, appellees,

537
00:33:01,960 --> 00:33:05,280
and then my colleague from Missouri, Mr. Devine, I think will address the court for five minutes

538
00:33:05,280 --> 00:33:06,280
after I do.

539
00:33:06,280 --> 00:33:12,360
I want to start by asking the court to imagine a scenario where senior White House staffers

540
00:33:12,360 --> 00:33:17,800
contact the book publishers, Amazon, Borders, Barnes & Noble, and the United States.

541
00:33:17,800 --> 00:33:21,200
And they tell them, we wanna have a book burning program.

542
00:33:21,200 --> 00:33:24,360
And we wanna help you implement this book burning program.

543
00:33:24,360 --> 00:33:27,080
We wanna identify for you the books that we want burned.

544
00:33:27,080 --> 00:33:30,960
And by the way, the books that we want burned are the books that criticize the administration

545
00:33:30,960 --> 00:33:31,960
and its policies.

546
00:33:31,960 --> 00:33:36,120
And suppose they said, we wanna be partners in this book burning effort.

547
00:33:36,120 --> 00:33:40,200
And when they didn't get the cooperation they wanted, for example, one time they said, hey,

548
00:33:40,200 --> 00:33:41,200
here's 12 authors.

549
00:33:41,200 --> 00:33:43,200
We want you to pull off the shelves and burn.

550
00:33:43,200 --> 00:33:44,200
These are the really bad ones.

551
00:33:44,200 --> 00:33:45,200
You gotta burn those books.

552
00:33:45,200 --> 00:33:48,520
And the book sellers probably said, we don't really wanna do that.

553
00:33:48,520 --> 00:33:52,880
Then two days later, the White House press secretary was at the podium and said, these

554
00:33:52,880 --> 00:33:55,200
book sellers need to burn more books.

555
00:33:55,200 --> 00:33:59,360
And the president supports a robust antitrust program to go after them.

556
00:33:59,360 --> 00:34:01,840
So they need to do more to go after these books.

557
00:34:01,840 --> 00:34:05,800
And later, they started sending emails that contained implied threatening communications

558
00:34:05,800 --> 00:34:07,600
like, oh, you haven't burned enough books.

559
00:34:07,600 --> 00:34:11,600
You haven't let us help you identify the books we want you to burn.

560
00:34:11,600 --> 00:34:15,520
And therefore, internally, we're considering our options about what to do about it.

561
00:34:15,520 --> 00:34:18,760
And when they lose their temper, they use the F-bomb against the book sellers.

562
00:34:18,760 --> 00:34:23,480
And then all of a sudden, in the middle of July of 2021, there's a one, two, three public

563
00:34:23,480 --> 00:34:28,040
punch where the White House press secretary and the surgeon general stayed at the podium

564
00:34:28,040 --> 00:34:32,520
and they say, these books are poison and we are gonna hold you accountable, a word that

565
00:34:32,520 --> 00:34:36,360
the district were expressly found carries with it the threat of consequences for letting

566
00:34:36,360 --> 00:34:38,160
these books be on your shelves.

567
00:34:38,160 --> 00:34:41,880
And then a few days later, the White House communications secretary also goes public

568
00:34:41,880 --> 00:34:46,280
and she says, we're just exploring legal liability against you because you haven't burned enough

569
00:34:46,280 --> 00:34:47,280
books.

570
00:34:47,280 --> 00:34:52,840
And we're looking at repealing a piece of legislation that gives you a huge subsidy

571
00:34:52,840 --> 00:34:55,600
worth billions of dollars if you don't burn more books.

572
00:34:55,600 --> 00:34:59,160
And then suppose all the book sellers decided the game wasn't worth a candle and they started

573
00:34:59,160 --> 00:35:00,160
complying.

574
00:35:00,160 --> 00:35:05,040
And that's exactly what you see here in the record here in July of 2021, you see the platforms

575
00:35:05,040 --> 00:35:09,880
having resisted the White House pressure for a significant period of time.

576
00:35:09,880 --> 00:35:13,000
They complied on a number of issues, they're holding out on certain issues.

577
00:35:13,000 --> 00:35:17,160
And all of a sudden, after there's those public threats combined with the private pressure

578
00:35:17,160 --> 00:35:22,320
campaign that had lasted for months and months, you see the platforms just giving in.

579
00:35:22,320 --> 00:35:25,800
And you see them essentially from then on agreeing with whatever the White House and

580
00:35:25,800 --> 00:35:28,240
the surgeon general demanded on those particular issues.

581
00:35:28,240 --> 00:35:32,360
And in particular, the White House had said, de-platform these specific speakers, Alex

582
00:35:32,360 --> 00:35:37,640
Berenson, because we think he's the epicenter of disinfo that radiates out to the persuadable

583
00:35:37,640 --> 00:35:38,640
public.

584
00:35:38,640 --> 00:35:42,280
In other words, the most persuasive speakers, the ones who are most effective at rebutting

585
00:35:42,280 --> 00:35:46,080
the government's preferred message, the White House is privately saying, take those people

586
00:35:46,080 --> 00:35:47,080
down.

587
00:35:47,080 --> 00:35:51,680
Tucker Carlson, why aren't you de-boosting a video by Tucker Carlson, a Fox News critic,

588
00:35:51,680 --> 00:35:55,200
or Fox News host who's one of the most prominent critics of the administration.

589
00:35:55,200 --> 00:35:58,480
And what you see is the platforms complying.

590
00:35:58,480 --> 00:36:02,560
They're under what the district court aptly described as unrelenting pressure from the

591
00:36:02,560 --> 00:36:04,640
most powerful office in the world.

592
00:36:04,640 --> 00:36:05,640
And apparently, they complied.

593
00:36:05,640 --> 00:36:07,840
So you see, in July of 2020...

594
00:36:07,840 --> 00:36:11,080
Does it matter if they want to do it anyway?

595
00:36:11,080 --> 00:36:15,200
It does not legally, but in fact, there's a factual finding that they did not want to

596
00:36:15,200 --> 00:36:16,200
do this anyway.

597
00:36:16,200 --> 00:36:19,780
So on both, that argument has a legal answer and a factual answer.

598
00:36:19,780 --> 00:36:24,120
Under Peterson against T.D. of Greenville, the Supreme Court expressly said, if the private

599
00:36:24,120 --> 00:36:28,480
party would have done it anyway, but the state action is violating First Amendment rights,

600
00:36:28,480 --> 00:36:29,480
that's enough.

601
00:36:29,480 --> 00:36:31,880
In back page, Judge Posner said exactly the same thing in back page.

602
00:36:31,880 --> 00:36:35,360
He said, even if the threat turns out to be empty, or they would have done it anyway,

603
00:36:35,360 --> 00:36:39,480
or they would have folded their tent, that's still a violation of the First Amendment.

604
00:36:39,480 --> 00:36:42,880
But actually here, you have a well-grounded factual finding from the district court who

605
00:36:42,880 --> 00:36:44,480
said, they wouldn't have done this anyway.

606
00:36:44,480 --> 00:36:48,800
And you see this in their emails, Facebook in May 2nd of 2021 is like, we're not going

607
00:36:48,800 --> 00:36:50,660
to take down the disinformation, does it?

608
00:36:50,660 --> 00:36:52,920
They haven't violated our policies.

609
00:36:52,920 --> 00:36:56,120
Three days later, you have the White House press secretary at the podium threatening

610
00:36:56,120 --> 00:37:00,240
them with a robust antitrust program, which Mark Zuckerberg has publicly stated is an

611
00:37:00,240 --> 00:37:03,000
existential threat to our company.

612
00:37:03,000 --> 00:37:06,040
In the very next sentence, she says, take down the misinformation.

613
00:37:06,040 --> 00:37:07,240
And then that point goes on.

614
00:37:07,240 --> 00:37:12,160
So it's a targeting of specific speakers, specific content, and specific viewpoint that's

615
00:37:12,160 --> 00:37:14,520
been so widespread and so effective.

616
00:37:14,520 --> 00:37:20,200
It's fundamentally transformed online discourse on questions of absolutely overwhelming social

617
00:37:20,200 --> 00:37:21,200
and political significance.

618
00:37:21,200 --> 00:37:31,440
Do you believe that there is a fact-finding of overt coercion such that there is not a

619
00:37:31,440 --> 00:37:39,640
necessity to get into whether this is encouragement and where the line between encouragement and

620
00:37:39,640 --> 00:37:46,000
the various, we've gotten an education about all the historical cases regarding encouragement

621
00:37:46,000 --> 00:37:47,000
versus coercion?

622
00:37:47,000 --> 00:37:48,000
Both of those.

623
00:37:48,000 --> 00:37:51,640
And he expressed findings of threat after threat after threat where page 22 and page

624
00:37:51,640 --> 00:37:56,840
24 and page 26 of the district court's opinion, he said, this was explicitly linking a threat

625
00:37:56,840 --> 00:38:02,400
of adverse legal consequences to the White House's demand to target specific viewpoints

626
00:38:02,400 --> 00:38:04,480
expressed in the COVID-19 area.

627
00:38:04,480 --> 00:38:10,200
Pages 97 and 99, the district court said, some explicit threats are the most obvious

628
00:38:10,200 --> 00:38:11,200
form of coercion.

629
00:38:11,200 --> 00:38:14,400
He's got a series of factual findings that these statements were threatening.

630
00:38:14,400 --> 00:38:18,520
They were received as threats by the platforms, and the platforms acted accordingly.

631
00:38:18,520 --> 00:38:20,120
They complied with the threats.

632
00:38:20,120 --> 00:38:23,120
But in addition to that, he finds a whole series of implied threats.

633
00:38:23,120 --> 00:38:24,440
These are the pressure statements.

634
00:38:24,440 --> 00:38:27,760
This is what Judge Wilt was describing as, ah, you got a nice social media platform.

635
00:38:27,760 --> 00:38:30,200
Sure would be bad if something bad happened to it.

636
00:38:30,200 --> 00:38:32,840
That's exactly the tenor of these private communications as well.

637
00:38:32,840 --> 00:38:34,320
Sorry, Your Honor.

638
00:38:34,320 --> 00:38:41,360
So do we have to get into at all, under your theory of the case, what the line is regarding

639
00:38:41,360 --> 00:38:43,020
encouragement?

640
00:38:43,020 --> 00:38:47,360
You do not, because whatever that line is, these facts are way beyond it.

641
00:38:47,360 --> 00:38:52,520
So if you look, for example, the threats cases, Backpage, Bantam Books, Acquetti, cases like

642
00:38:52,520 --> 00:38:56,640
that, and compare this to the threat in the Backpage case.

643
00:38:56,640 --> 00:39:01,240
That's a letter from a sheriff to credit card companies saying, we don't want you to visit

644
00:39:01,240 --> 00:39:06,160
the Backpage, implying that there might be some federal criminal or civil liability if

645
00:39:06,160 --> 00:39:09,720
they do, even though he's got no enforcement action with respect to that, and asking for

646
00:39:09,720 --> 00:39:11,960
a contact person to talk to.

647
00:39:11,960 --> 00:39:16,720
And you compare that to, in this case, what the district court count was, a whole series

648
00:39:16,720 --> 00:39:23,640
of threats in public and in private, going after legal consequences that would have impacts

649
00:39:23,640 --> 00:39:29,360
of worth billions of dollars to these companies, combined with this relentless demand for,

650
00:39:29,360 --> 00:39:34,540
ah, again and again and again, from all these federal agencies, just peppering them with,

651
00:39:34,540 --> 00:39:36,480
take down these accounts, take down these speakers.

652
00:39:36,480 --> 00:39:42,240
You have the FBI sending one to five times per month a demand for removal of specific

653
00:39:42,240 --> 00:39:48,120
speakers from dozens or hundreds at a time, going all the way back to 2018, saying, take

654
00:39:48,120 --> 00:39:49,120
all this stuff down.

655
00:39:49,120 --> 00:39:51,320
Can we talk about standing, please?

656
00:39:51,320 --> 00:39:52,320
Sure.

657
00:39:52,320 --> 00:39:55,920
I'd like to talk to the first, address the first two points that were addressed in the

658
00:39:55,920 --> 00:39:57,460
questions to my colleague before.

659
00:39:57,460 --> 00:39:58,960
You had asked about the state standing.

660
00:39:58,960 --> 00:40:01,300
Do the states have direct censorship injuries?

661
00:40:01,300 --> 00:40:02,480
The answer is yes.

662
00:40:02,480 --> 00:40:05,560
They're laid forth at the Flesh Declaration and the Bosch Declaration that are in your

663
00:40:05,560 --> 00:40:10,640
excerpts of record, where it talks about multiple state officials and state agencies made specific

664
00:40:10,640 --> 00:40:16,160
postings on social media platforms that were taken down, and the district court expressed

665
00:40:16,160 --> 00:40:19,400
reference to those, found that that was caused by federal, federal pressure.

666
00:40:19,400 --> 00:40:23,600
They said, this is happening right when the federal agencies are pressuring the platforms

667
00:40:23,600 --> 00:40:25,080
to take this kind of stuff down.

668
00:40:25,080 --> 00:40:26,080
And this includes...

669
00:40:26,080 --> 00:40:30,680
Is there evidence in the record to conclude that they were expressly caused by federal

670
00:40:30,680 --> 00:40:31,680
pressure?

671
00:40:31,680 --> 00:40:35,600
Yes, there's the... and what the district court cited on this is the direct, the timing,

672
00:40:35,600 --> 00:40:37,440
the chronological identity.

673
00:40:37,440 --> 00:40:40,600
Right when the feds are pushing them to take this stuff down, that's when these posts gets

674
00:40:40,600 --> 00:40:41,600
taken down.

675
00:40:41,600 --> 00:40:42,600
That's what the district court found.

676
00:40:42,600 --> 00:40:43,600
That's not a clearly erroneous finding.

677
00:40:43,600 --> 00:40:48,040
And in fact, you see that same reasoning in Bantam books, in Backpage, in Acquetti.

678
00:40:48,040 --> 00:40:51,560
Is that the primary state standing argument?

679
00:40:51,560 --> 00:40:55,000
Wouldn't that be the most straightforward?

680
00:40:55,000 --> 00:40:56,000
Why wouldn't that be the...

681
00:40:56,000 --> 00:40:57,000
That gets us...

682
00:40:57,000 --> 00:41:00,320
If that's there, why are you not talking about that?

683
00:41:00,320 --> 00:41:01,320
Absolutely agree.

684
00:41:01,320 --> 00:41:04,040
The response to that is not that this didn't happen and not that the federal government

685
00:41:04,040 --> 00:41:08,320
didn't cause it, because we've got a non-clearly erroneous finding that it did cause it.

686
00:41:08,320 --> 00:41:11,320
Their argument is you haven't said that you're gonna do this again in the future.

687
00:41:11,320 --> 00:41:12,320
And that's just wrong.

688
00:41:12,320 --> 00:41:16,840
Paragraph seven of the Bosch Declaration, which is in your excerpts of record, expressly

689
00:41:16,840 --> 00:41:20,920
says she is the communications director of the Louisiana Department of Justice, Louisiana

690
00:41:20,920 --> 00:41:22,960
Attorney General's office.

691
00:41:22,960 --> 00:41:28,400
We posted a YouTube video that's a picture of constituents talking to legislators about

692
00:41:28,400 --> 00:41:30,460
mask mandates we disagree with.

693
00:41:30,460 --> 00:41:34,020
That got taken down right when the White House was saying take down that kind of stuff.

694
00:41:34,020 --> 00:41:35,400
And that's what the district court found.

695
00:41:35,400 --> 00:41:39,680
And her declaration says, now that that's been taken down, we can't put up similar content

696
00:41:39,680 --> 00:41:40,760
in the future.

697
00:41:40,760 --> 00:41:43,280
So their argument is directly contradicted by the record.

698
00:41:43,280 --> 00:41:44,280
That is the evidence of where the district court...

699
00:41:44,280 --> 00:41:48,240
And there's a finding from the district court that the states are facing the imminent threat

700
00:41:48,240 --> 00:41:50,240
of ongoing future censorship injuries.

701
00:41:50,240 --> 00:41:52,240
Based on our evidence, that's not a clearly erroneous finding.

702
00:41:52,240 --> 00:41:53,240
Yes, Your Honor.

703
00:41:53,240 --> 00:42:01,000
With respect to the state, that you're seeking to redress is it the censorship on the social

704
00:42:01,000 --> 00:42:06,360
media or the government's interference with the social media platforms content moderation?

705
00:42:06,360 --> 00:42:07,360
I would say it's the...

706
00:42:07,360 --> 00:42:10,440
The governmental interference has caused the censorship.

707
00:42:10,440 --> 00:42:13,380
So there are no platforms that are defendants in this case.

708
00:42:13,380 --> 00:42:16,640
We haven't challenged what the platforms are able to do independently.

709
00:42:16,640 --> 00:42:21,640
Our argument is when the platforms make decisions, it has to be relieved from the boot of federal

710
00:42:21,640 --> 00:42:26,040
pressure and federal coercion that we see going back to 2017 in this case, including

711
00:42:26,040 --> 00:42:30,320
threats, secret meetings to Judge Willett's point, secret meetings starting in 2017 where

712
00:42:30,320 --> 00:42:34,880
the FBI is brokering meetings and coordinating with senior congressional staffers who are

713
00:42:34,880 --> 00:42:37,160
flying out to Silicon Valley.

714
00:42:37,160 --> 00:42:40,960
This is all in the testimony of Elvis Chan, secretly meeting in Silicon Valley with the

715
00:42:40,960 --> 00:42:46,420
senior content moderation officers of these platforms, showing them adverse legislation.

716
00:42:46,420 --> 00:42:49,280
This is what we're gonna pass unless you start censoring thing.

717
00:42:49,280 --> 00:42:54,560
And Elvis Chan opined, having directly participated in that process, opined that the platform's

718
00:42:54,560 --> 00:42:58,760
ability, our willingness to start cooperating in the demands for censorship of election

719
00:42:58,760 --> 00:43:02,400
related speech were directly caused by that pressure.

720
00:43:02,400 --> 00:43:06,120
Intense pressure is what he calls it actually in his master's thesis of all places.

721
00:43:06,120 --> 00:43:08,200
So we have direct findings of causation.

722
00:43:08,200 --> 00:43:12,340
The district court finds that on page 134 of its opinion, that that is what caused it.

723
00:43:12,340 --> 00:43:14,480
So that is what the states are challenging here.

724
00:43:14,480 --> 00:43:16,760
And the state's injuries are actually fourfold.

725
00:43:16,760 --> 00:43:18,200
There's the direct censorship injury.

726
00:43:18,200 --> 00:43:21,880
That alone clearly gets us past the Article III threshold.

727
00:43:21,880 --> 00:43:26,160
But also we've alleged that we have a sovereign interest in knowing what our constituents

728
00:43:26,160 --> 00:43:28,560
think and feel about the great issues of our day.

729
00:43:28,560 --> 00:43:33,240
And the, Flesch and Bosch attest that we sit on, our communications people sit on social

730
00:43:33,240 --> 00:43:37,360
media all day and follow what Missourians and Louisians are savings.

731
00:43:37,360 --> 00:43:39,080
And that is saying on that, that's so important.

732
00:43:39,080 --> 00:43:42,680
We gotta be able to craft messages and know what policies we're adopting to be responsive

733
00:43:42,680 --> 00:43:43,680
to our citizens.

734
00:43:43,680 --> 00:43:48,720
We cited the Story case that radically reinforces that as a state interest.

735
00:43:48,720 --> 00:43:52,920
Where he says like, going back to 1863, as everyone knows, going back to the Federalist

736
00:43:52,920 --> 00:43:57,640
number 56 where Madison said it, everyone knows state legislators have a sovereign interest

737
00:43:57,640 --> 00:43:59,840
in knowing what their constituents think and feel.

738
00:43:59,840 --> 00:44:00,840
And that's directly impacted.

739
00:44:00,840 --> 00:44:04,880
But vis-a-vis the state government, vis-a-vis the state federal government?

740
00:44:04,880 --> 00:44:05,880
Yes.

741
00:44:05,880 --> 00:44:08,880
So in other words, the Louisiana Department of Justice and the Missouri Attorney General's

742
00:44:08,880 --> 00:44:14,640
Office put in declarations saying our communications directors follow Missourians and Louisians'

743
00:44:14,640 --> 00:44:18,720
speech about COVID, about elections, about all the topics that the federal government

744
00:44:18,720 --> 00:44:20,120
has interfered with here.

745
00:44:20,120 --> 00:44:24,240
They follow it closely on a daily basis and it's imperative that we know what our constituents

746
00:44:24,240 --> 00:44:25,720
actually think and feel.

747
00:44:25,720 --> 00:44:29,240
And we can't know that because half of that stuff is being suppressed.

748
00:44:29,240 --> 00:44:32,920
The viewpoints of the federal government doesn't like are just silenced on social media.

749
00:44:32,920 --> 00:44:33,920
It's hard to overstate.

750
00:44:33,920 --> 00:44:37,800
That's why the district court found in this case is arguably the most massive attack on

751
00:44:37,800 --> 00:44:39,280
free speech rights in American history.

752
00:44:39,280 --> 00:44:41,120
Let me ask you what I asked Mr. Tinney.

753
00:44:41,120 --> 00:44:49,200
Are we free as a panel to take judicial notice of or otherwise consider the recent findings

754
00:44:49,200 --> 00:44:53,800
or releases or disclosures from recent U.S. congressional proceedings?

755
00:44:53,800 --> 00:44:54,800
Yes.

756
00:44:54,800 --> 00:44:59,600
On the judicial notice point, as Judge Elrod pointed out, judicial notice is a situation

757
00:44:59,600 --> 00:45:02,560
where there's no reasonable dispute about the authenticity of the document.

758
00:45:02,560 --> 00:45:06,080
And if a congressional committee has released something saying this is an internal email

759
00:45:06,080 --> 00:45:11,200
to Facebook, which by the way directly reinforces the evidence we have on our side, which is

760
00:45:11,200 --> 00:45:14,400
the direct communications with the White House officials, the court can easily say we take

761
00:45:14,400 --> 00:45:17,800
judicial notice of the fact that that's a document whose authenticity cannot reasonably

762
00:45:17,800 --> 00:45:20,040
question and can weigh and consider that evidence.

763
00:45:20,040 --> 00:45:24,040
And all that evidence just powerfully reinforces the overwhelming evidence of coercion we have

764
00:45:24,040 --> 00:45:25,040
in this case.

765
00:45:25,040 --> 00:45:28,760
You have like a really interesting snapshot into what Facebook's C-suite is saying.

766
00:45:28,760 --> 00:45:33,200
They're emailing Mark Zuckerberg and Sheryl Sandberg and saying things like, you know,

767
00:45:33,200 --> 00:45:37,360
why did we why were we taking down speech about the origins of COVID, the lab leak theory?

768
00:45:37,360 --> 00:45:39,600
And they're like, well, we shouldn't have done it, but we were under pressure from the

769
00:45:39,600 --> 00:45:40,600
administration.

770
00:45:40,600 --> 00:45:45,440
That's internal emails or an internal email from Nick Clegg right after that July full

771
00:45:45,440 --> 00:45:47,800
court press of pressure and threats from the White House.

772
00:45:47,800 --> 00:45:52,920
Nick Clegg emails internally and he says, you know, given the other fish to fry we have

773
00:45:52,920 --> 00:45:56,160
with the White House, I think we ought to deescalate here.

774
00:45:56,160 --> 00:46:01,640
So exactly what you expect Facebook that totally reinforces the district court's specific findings

775
00:46:01,640 --> 00:46:03,440
that these are all perceived as threats.

776
00:46:03,440 --> 00:46:08,040
And that's exactly what Backpage and Bantam Books and Acquetti in cases like that say.

777
00:46:08,040 --> 00:46:10,480
Well, we know this was threatening because look how they reacted.

778
00:46:10,480 --> 00:46:14,800
Okay, so we have two types and you said there are four.

779
00:46:14,800 --> 00:46:20,840
There's direct censorship, which is the government officials as a speaker.

780
00:46:20,840 --> 00:46:24,040
There's a sovereign interest as a listener.

781
00:46:24,040 --> 00:46:25,040
Yes, yes.

782
00:46:25,040 --> 00:46:30,600
There's some a lot of briefing on whether listeners can be that that's good enough.

783
00:46:30,600 --> 00:46:32,720
And then what's the third and the fourth?

784
00:46:32,720 --> 00:46:36,800
Yeah, just on that second point was fascinating is Carol Crawford, the CDC witness in her

785
00:46:36,800 --> 00:46:39,840
deposition, volunteered that she agrees with that second interest.

786
00:46:39,840 --> 00:46:43,840
She said, look, I want them to take down the misinformation, but I got to know what was

787
00:46:43,840 --> 00:46:48,160
censored because otherwise the CDC has to craft messages that are response to them.

788
00:46:48,160 --> 00:46:51,080
So she echoes the very thing that we said in our declaration.

789
00:46:51,080 --> 00:46:54,840
The third one is a closely related interest, which is the states have a sovereign interest

790
00:46:54,840 --> 00:46:59,600
in having fair, free and unbiased processes to petition the government.

791
00:46:59,600 --> 00:47:02,520
So one thing you see in the White House emails is the White House says we want you to crack

792
00:47:02,520 --> 00:47:07,240
down on groups and Facebook groups and so forth.

793
00:47:07,240 --> 00:47:10,520
And these are the things that our our Declarant Jill Hines, one of the plaintiffs in this

794
00:47:10,520 --> 00:47:15,080
case said, I try to organize these Facebook groups in Louisiana and I couldn't do it.

795
00:47:15,080 --> 00:47:18,520
And by the way, her most recent declaration, the one that was filed in May of this year

796
00:47:18,520 --> 00:47:21,280
says this is interference is still going on.

797
00:47:21,280 --> 00:47:24,980
The notion there's no more COVID censorship is is not true at all.

798
00:47:24,980 --> 00:47:29,640
She says, and so as a result of that, I can't put together 18,000 Louisianans to magnify

799
00:47:29,640 --> 00:47:33,440
our voice and petition the government for redress of grievances.

800
00:47:33,440 --> 00:47:34,640
And that's a sovereign interest for us.

801
00:47:34,640 --> 00:47:35,960
We got to hear from those people.

802
00:47:35,960 --> 00:47:37,520
So it's related to the second one.

803
00:47:37,520 --> 00:47:45,600
One of the amici, I guess it's the Stanford amici that was unopposed in allowing that

804
00:47:45,600 --> 00:47:52,360
brief in has says factually disagrees with all of that.

805
00:47:52,360 --> 00:47:55,360
We got a footnote in our brief addressing that is absolutely dead wrong.

806
00:47:55,360 --> 00:48:00,160
Virtually every virtually every factual representation they make in that brief is directly contradicted

807
00:48:00,160 --> 00:48:03,920
by the evidence before the district court, which includes their own public report and

808
00:48:03,920 --> 00:48:05,000
their own statements.

809
00:48:05,000 --> 00:48:07,520
We quoted some of those in a lengthy footnote in our brief.

810
00:48:07,520 --> 00:48:12,440
And I would direct the court's attention to pages 70 to 75 and 80 to 86 of the district

811
00:48:12,440 --> 00:48:17,520
court's opinion, where he makes specific findings resulting in the conclusion that CISA and

812
00:48:17,520 --> 00:48:22,440
the election integrity partnership were quote, were completely intertwined.

813
00:48:22,440 --> 00:48:25,360
Let me just run through some of the points of contact between the election integrity

814
00:48:25,360 --> 00:48:26,360
partnership.

815
00:48:26,360 --> 00:48:28,560
I think we've got to get through these other four.

816
00:48:28,560 --> 00:48:29,560
Sure.

817
00:48:29,560 --> 00:48:30,560
Yeah.

818
00:48:30,560 --> 00:48:33,760
And then finally, we assert a quasi sovereign interest against the federal government.

819
00:48:33,760 --> 00:48:35,640
They dispute that we can do that.

820
00:48:35,640 --> 00:48:38,920
The parties have briefed that and actually my colleague, Mr. Devine, is prepared to address

821
00:48:38,920 --> 00:48:39,920
that parents' arguments.

822
00:48:39,920 --> 00:48:42,800
So he's going to talk about Breckin and whether it works.

823
00:48:42,800 --> 00:48:43,800
Exactly.

824
00:48:43,800 --> 00:48:44,800
Yes.

825
00:48:44,800 --> 00:48:45,800
Good law.

826
00:48:45,800 --> 00:48:46,800
Yes.

827
00:48:46,800 --> 00:48:47,800
The CTA has not been overruled.

828
00:48:47,800 --> 00:48:49,720
It's still good law directly addressed.

829
00:48:49,720 --> 00:48:50,720
What's four?

830
00:48:50,720 --> 00:48:52,520
That was number four, was that quasi sovereign interest.

831
00:48:52,520 --> 00:48:53,520
What was three?

832
00:48:53,520 --> 00:48:57,520
The state's injuries are direct censorship injuries of our own speech, interference with

833
00:48:57,520 --> 00:49:01,760
our ability to hear our constituents' voices on social media, third, interference with

834
00:49:01,760 --> 00:49:06,600
our ability to have a fair and unbiased process for our people to organize and petition the

835
00:49:06,600 --> 00:49:07,600
government for grievances.

836
00:49:07,600 --> 00:49:10,160
And fourth, those are all sovereign injuries.

837
00:49:10,160 --> 00:49:15,120
And then the fourth is the quasi sovereign injury to a substantial segment of our population.

838
00:49:15,120 --> 00:49:18,640
And I haven't even talked about the individual plaintiff's injuries yet.

839
00:49:18,640 --> 00:49:20,320
Only one plaintiff need have standing.

840
00:49:20,320 --> 00:49:24,360
The states, the individual plaintiffs alone have like obvious standing.

841
00:49:24,360 --> 00:49:28,200
There's a factual finding from the district court that plaintiff Jim Hoff is currently

842
00:49:28,200 --> 00:49:33,080
subject to an ongoing campaign by federal officials to target the content on his website.

843
00:49:33,080 --> 00:49:36,600
And that is corroborated by the affidavit that he put in in May of this year.

844
00:49:36,600 --> 00:49:39,560
He says, look at all the ongoing harassment I've been receiving.

845
00:49:39,560 --> 00:49:43,400
This notion that like COVID censorship is over is totally unsupportable.

846
00:49:43,400 --> 00:49:48,880
Two weeks ago, I gave a talk about this very case at NCLA, our co-counsel's office, criticizing

847
00:49:48,880 --> 00:49:50,200
federal government censorship.

848
00:49:50,200 --> 00:49:52,240
It was taken down the next day by YouTube.

849
00:49:52,240 --> 00:49:55,760
I was censored as a lawyer for the Louisiana attorney general.

850
00:49:55,760 --> 00:50:00,240
Do not tell me that Louisiana doesn't face ongoing censorship injuries as a result of

851
00:50:00,240 --> 00:50:01,240
federal interference.

852
00:50:01,240 --> 00:50:07,040
But the plaintiffs also have a whole series of injuries.

853
00:50:07,040 --> 00:50:09,080
Go ahead, Your Honor.

854
00:50:09,080 --> 00:50:15,440
Assuming, arguing no, and this is just an arguing no question, that we decide that the

855
00:50:15,440 --> 00:50:20,400
individuals do have standing, but that the states don't.

856
00:50:20,400 --> 00:50:24,120
Wouldn't that affect the scope of the injunctive relief?

857
00:50:24,120 --> 00:50:28,280
I was looking at this morning to address that question, and I don't see how.

858
00:50:28,280 --> 00:50:31,280
Because the injunction is not framed as don't do anything with respect to the states.

859
00:50:31,280 --> 00:50:34,360
It just says, don't do these things that take things down from social media.

860
00:50:34,360 --> 00:50:40,480
And the individual plaintiff's standing is broad enough to address all of that.

861
00:50:40,480 --> 00:50:45,840
Because among other things, the second interest they address is they say, look, we follow

862
00:50:45,840 --> 00:50:46,840
all these people.

863
00:50:46,840 --> 00:50:50,040
Everyone that the federal officials targeted, the disinformation doesn't.

864
00:50:50,040 --> 00:50:51,920
All the people listed in the reality project.

865
00:50:51,920 --> 00:50:52,920
Jill Hines has a declaration.

866
00:50:52,920 --> 00:50:56,840
She says, I follow 86 of these people on social media, targeted by every single one of these

867
00:50:56,840 --> 00:50:57,840
federal agencies.

868
00:50:57,840 --> 00:51:02,240
And the Supreme Court held very clearly in Virginia Board of Pharmacy that when you take

869
00:51:02,240 --> 00:51:07,840
down Tucker Carlson, Tucker Carlson's video, it's de-boosted due to federal action.

870
00:51:07,840 --> 00:51:10,320
So you never see it in your news feed.

871
00:51:10,320 --> 00:51:15,040
That injures Tucker Carlson and the people who follow him, the 3 million people who follow

872
00:51:15,040 --> 00:51:16,040
him equally.

873
00:51:16,040 --> 00:51:20,480
They boast to have a 1st Amendment injury because the right to listen is just as fundamental

874
00:51:20,480 --> 00:51:21,480
as the right to speak.

875
00:51:21,480 --> 00:51:23,480
And these plaintiffs assert the right to listen.

876
00:51:23,480 --> 00:51:26,840
They assert the right to listen to virtually every single one of the speakers that was

877
00:51:26,840 --> 00:51:28,800
silenced by federal censorship in this case.

878
00:51:28,800 --> 00:51:32,160
They follow the New York Post with the underbid laptop story being taken down.

879
00:51:32,160 --> 00:51:36,560
They follow the dissent when Robert F. Kennedy Jr. is booted off of Instagram because Jennifer

880
00:51:36,560 --> 00:51:38,920
Psaki demanded that they take him down.

881
00:51:38,920 --> 00:51:40,800
Our plaintiffs follow Robert F. Kennedy Jr.

882
00:51:40,800 --> 00:51:42,480
They're just as injured under the 1st Amendment.

883
00:51:42,480 --> 00:51:43,960
And that's the second injury.

884
00:51:43,960 --> 00:51:49,360
And that injury is, I think, really is so comprehensive that it just really neutralizes

885
00:51:49,360 --> 00:51:52,200
all the arguments they've made about saying, oh, the injunction is too broad.

886
00:51:52,200 --> 00:51:56,680
I do want to address the alleged breath and vagueness of the injunction.

887
00:51:56,680 --> 00:52:04,280
What I would like to do is direct the court's attention to two sources that relate to the

888
00:52:04,280 --> 00:52:06,200
alleged breath of the injunction.

889
00:52:06,200 --> 00:52:09,920
If you look at the operative verbs in the injunction, the injunction says you can't

890
00:52:09,920 --> 00:52:13,080
pressure, induce, encourage, or urge.

891
00:52:13,080 --> 00:52:15,560
And the government says, oh, we just don't understand that.

892
00:52:15,560 --> 00:52:16,560
Those verbs are too broad.

893
00:52:16,560 --> 00:52:17,560
Those verbs' meaning is very plain.

894
00:52:17,560 --> 00:52:19,240
It's right there in the dictionary.

895
00:52:19,240 --> 00:52:20,960
They're broad, but they're not vague.

896
00:52:20,960 --> 00:52:22,440
And here's evidence of that.

897
00:52:22,440 --> 00:52:25,400
Norwood, the foundational case about state action.

898
00:52:25,400 --> 00:52:31,400
The Supreme Court said it is axiomatic that you cannot induce, encourage, or promote.

899
00:52:31,400 --> 00:52:36,480
Two of the very verbs that are in the injunction, encourage and induce, are the verbs that are

900
00:52:36,480 --> 00:52:38,360
in the Norwood decision.

901
00:52:38,360 --> 00:52:41,480
Another elsewhere in the injunction, it says you can't threaten or coerce.

902
00:52:41,480 --> 00:52:42,480
Look at the back page decision.

903
00:52:42,480 --> 00:52:46,200
At the very end of the back page decision, Judge Posner directs the district court to

904
00:52:46,200 --> 00:52:48,400
enter an injunction on remand with specific language.

905
00:52:48,400 --> 00:52:50,800
And here's the Seventh Circuit's approved injunction.

906
00:52:50,800 --> 00:52:56,160
You shall not take any action, formal or informal, to threaten or coerce any third party not

907
00:52:56,160 --> 00:52:58,200
to do business with back page.

908
00:52:58,200 --> 00:53:02,200
Verbs of exactly the exact same verbs that are in our injunction have already been approved

909
00:53:02,200 --> 00:53:06,120
by the Seventh Circuit and are already appearing in Supreme Court decisions.

910
00:53:06,120 --> 00:53:08,800
And they say, oh, we just can't understand this.

911
00:53:08,800 --> 00:53:15,640
Judge Bullitt, to turn to your question earlier, the dichotomy that we see reflected in the

912
00:53:15,640 --> 00:53:17,960
injunction isn't strictly between public and private speech.

913
00:53:17,960 --> 00:53:21,080
So it's very bad, it's very telling that a lot of this happened in private going all

914
00:53:21,080 --> 00:53:22,920
the way back to 2017.

915
00:53:22,920 --> 00:53:27,580
But a public threat, like the letter that the sheriff sent to back page in the back

916
00:53:27,580 --> 00:53:31,040
page case, that was posted on his website in a news release the next day.

917
00:53:31,040 --> 00:53:32,440
That was a public threat.

918
00:53:32,440 --> 00:53:37,200
A publicly made threat still violates the First Amendment as long as they conceded oral

919
00:53:37,200 --> 00:53:39,080
argument in the language of equity.

920
00:53:39,080 --> 00:53:44,320
A reasonable observer could reasonably interpret it as intimating some kind of adverse legal

921
00:53:44,320 --> 00:53:45,320
consequences.

922
00:53:45,320 --> 00:53:48,680
And we have this again and again in here.

923
00:53:48,680 --> 00:53:52,840
If you look at, if you imagine you're, you know, Nick Clegg of Facebook and you're on

924
00:53:52,840 --> 00:53:57,000
the receiving end of all these communications, how would any reasonable social media platform

925
00:53:57,000 --> 00:54:01,960
receive them as a pressure campaign, as a series of threats?

926
00:54:01,960 --> 00:54:06,080
And to Judge Elrod's question earlier, we have an entirely different theory of state

927
00:54:06,080 --> 00:54:10,040
action, joint participation, that doesn't even require threats or pressure, that the

928
00:54:10,040 --> 00:54:14,140
district court also found all this conduct falls within.

929
00:54:14,140 --> 00:54:19,180
For example, the joint participation doctrine says that if you've so involved yourself in

930
00:54:19,180 --> 00:54:23,520
private decision making, then you have a state action problem.

931
00:54:23,520 --> 00:54:25,200
That's exactly what we have in this case.

932
00:54:25,200 --> 00:54:30,080
You have federal officials, every single one of these agencies has insinuated themselves

933
00:54:30,080 --> 00:54:33,320
into the content moderation decisions of major social media platforms.

934
00:54:33,320 --> 00:54:38,760
And it's occurring at the speaker-specific level when they say they're at the table when

935
00:54:38,760 --> 00:54:41,120
they're deciding, do we take down this specific post?

936
00:54:41,120 --> 00:54:42,120
Do we take down that specific post?

937
00:54:42,120 --> 00:54:45,400
They're having big group meetings with slide decks about the post that they want to take

938
00:54:45,400 --> 00:54:46,400
down.

939
00:54:46,400 --> 00:54:49,600
That in sin- go ahead, Your Honor.

940
00:54:49,600 --> 00:54:55,960
I'm struggling with your public, private, you used an example of a public threat.

941
00:54:55,960 --> 00:55:02,200
And that was because that was a threat, that that was actionable.

942
00:55:02,200 --> 00:55:13,040
But just public speech about, we want companies to moderate content because we have a suicide

943
00:55:13,040 --> 00:55:16,400
epidemic of young people.

944
00:55:16,400 --> 00:55:23,800
And we think you should cut down on this bullying, hate speech directed, targeted young people.

945
00:55:23,800 --> 00:55:26,680
And this is a super important problem.

946
00:55:26,680 --> 00:55:32,360
And we, the health officials and the president and everyone thinks this and wants to cut

947
00:55:32,360 --> 00:55:33,360
down.

948
00:55:33,360 --> 00:55:40,240
Now that would not be subject, should not, that's not a threat.

949
00:55:40,240 --> 00:55:44,480
It's an announcement of a policy position.

950
00:55:44,480 --> 00:55:45,840
That's different from a threat.

951
00:55:45,840 --> 00:55:49,040
Yeah, and I think there's a Supreme Court case that addresses United States against

952
00:55:49,040 --> 00:55:53,560
Williams from 2008 that talks about the difference between kind of, you know, high level advocacy

953
00:55:53,560 --> 00:55:56,440
and advocacy for concrete action.

954
00:55:56,440 --> 00:56:01,240
And what's prohibited by the injunction is you can't say, you can say these suicide

955
00:56:01,240 --> 00:56:02,240
promoting speeches bad.

956
00:56:02,240 --> 00:56:05,720
Now keep in mind this is a hypothetical and they don't contend that it ever has happened

957
00:56:05,720 --> 00:56:06,720
or ever will happen.

958
00:56:06,720 --> 00:56:08,760
But they say someday the Surgeon General might want to do that.

959
00:56:08,760 --> 00:56:13,200
And you're weighing that against millions of actually proven First Amendment violations.

960
00:56:13,200 --> 00:56:17,160
But on their hypothetical the Surgeon General can say all this speech is terrible, it's

961
00:56:17,160 --> 00:56:19,280
awful, the suicide promoting speech is awful.

962
00:56:19,280 --> 00:56:23,040
But what he can't do is pick up the phone and say take it down.

963
00:56:23,040 --> 00:56:28,080
He cannot call the booksellers and say burn these books because these are the bad books.

964
00:56:28,080 --> 00:56:31,600
He can get on TV and say these are terrible books, no one should read them, they're awful.

965
00:56:31,600 --> 00:56:33,640
But he can't say pull them off the shelves and burn them.

966
00:56:33,640 --> 00:56:35,480
And that's the dichotomy, right?

967
00:56:35,480 --> 00:56:39,200
And keep in mind that threatening is only one of the things that's enjoined because

968
00:56:39,200 --> 00:56:45,480
the district court aptly found that as the D.C. circuit held in the Philip Morris decision

969
00:56:45,480 --> 00:56:49,960
that you've got to look at what the injunction enjoins in the context of the case and with

970
00:56:49,960 --> 00:56:52,840
specific reference to the district court's factual findings.

971
00:56:52,840 --> 00:56:55,040
So we've got 82 pages of factual findings.

972
00:56:55,040 --> 00:56:58,720
When the government says we're so puzzled we don't know what this injunction requires,

973
00:56:58,720 --> 00:57:02,440
the same sort of argument was made in the Philip Morris case where the injunction said

974
00:57:02,440 --> 00:57:07,200
don't engage in acts of racketeering with respect to the marketing and sale of cigarettes.

975
00:57:07,200 --> 00:57:10,560
And the cigarette company said we don't understand that, what does that possibly mean?

976
00:57:10,560 --> 00:57:15,240
And the D.C. circuit said go read the 4,088 findings of fact that flesh that out.

977
00:57:15,240 --> 00:57:17,200
And the same response is available to the government.

978
00:57:17,200 --> 00:57:21,200
Here we've got 82 pages of specific factual findings that they largely ignore in their

979
00:57:21,200 --> 00:57:25,280
briefing in this case and those flesh out the meaning of the injunction.

980
00:57:25,280 --> 00:57:26,280
But the dichotomy is between...

981
00:57:26,280 --> 00:57:35,360
Your viewpoint is does the injunction cover the two hypotheticals that Mr. Tinney began

982
00:57:35,360 --> 00:57:36,360
his argument with?

983
00:57:36,360 --> 00:57:40,160
The earthquake hypothetical, I think it's that same dichotomy.

984
00:57:40,160 --> 00:57:46,000
You can say this earthquake related speech that's disinformation is false, it's wrong.

985
00:57:46,000 --> 00:57:50,280
The government can say it's bad, but the government can't say social media platforms you need

986
00:57:50,280 --> 00:57:51,640
to take it down.

987
00:57:51,640 --> 00:57:54,720
Just like the government can't stand at the podium and say Barnes and Noble you need to

988
00:57:54,720 --> 00:57:57,840
burn the bad books, burn the communist books, whatever it is.

989
00:57:57,840 --> 00:58:00,520
They can't say take down speech on the basis of content and viewpoint.

990
00:58:00,520 --> 00:58:04,360
And that's really the dichotomy that the first amendment already imposes on the government.

991
00:58:04,360 --> 00:58:05,880
This isn't like a novel burden.

992
00:58:05,880 --> 00:58:10,480
The notion that federal officials should be publicly saying take down social media posts

993
00:58:10,480 --> 00:58:11,880
is a new thing.

994
00:58:11,880 --> 00:58:15,480
It's a brand new thing that basically started after the 2016 election.

995
00:58:15,480 --> 00:58:20,120
In our country we don't have a history of federal officials publicly or privately demanding

996
00:58:20,120 --> 00:58:22,520
that books be burned in social media platforms.

997
00:58:22,520 --> 00:58:28,360
As you know there are different merits theories at play here.

998
00:58:28,360 --> 00:58:34,280
There's a coercion test, there's a joint action test.

999
00:58:34,280 --> 00:58:40,000
The proper scope of the injunction might be different under one or the other.

1000
00:58:40,000 --> 00:58:47,320
On this record, on these facts, which do you think is most squarely appropriate?

1001
00:58:47,320 --> 00:58:51,600
I believe they are very clearly, I believe they are all easily satisfied.

1002
00:58:51,600 --> 00:58:55,240
But the district court's opinion does focus on the coercion and pressure.

1003
00:58:55,240 --> 00:58:57,320
So he views those as related tests, right?

1004
00:58:57,320 --> 00:58:58,320
There's a ton of coercion.

1005
00:58:58,320 --> 00:59:03,160
And when he gets a significant encouragement he says if there is ever a case where significant

1006
00:59:03,160 --> 00:59:05,560
encouragement applies, this is it.

1007
00:59:05,560 --> 00:59:10,080
So even if you say well some of these statements were too fuzzy to turn out to be threats,

1008
00:59:10,080 --> 00:59:13,320
we have explicit factual findings to the contrary again and again throughout the opinion.

1009
00:59:13,320 --> 00:59:16,440
But even if that were determined, he's like at least they're significantly encouraging

1010
00:59:16,440 --> 00:59:17,440
it.

1011
00:59:17,440 --> 00:59:19,920
They're bombarding them month after month after month.

1012
00:59:19,920 --> 00:59:21,760
There's meeting after meeting after meeting.

1013
00:59:21,760 --> 00:59:27,040
The FBI has been meeting with the senior content moderation officials of social media platforms

1014
00:59:27,040 --> 00:59:31,760
on a monthly basis going back to 2018 or 2017.

1015
00:59:31,760 --> 00:59:34,360
And in all these meetings they're talking about here, so what do you want to take down?

1016
00:59:34,360 --> 00:59:35,360
Will you take this down?

1017
00:59:35,360 --> 00:59:38,320
And in connection with that they're sending them encrypted lists of all the stuff they

1018
00:59:38,320 --> 00:59:39,520
want them to take down.

1019
00:59:39,520 --> 00:59:41,320
CISA is engaging in this switchboarding.

1020
00:59:41,320 --> 00:59:45,920
CISA sets up the election integrity partnership to do the mass surveillance of the government,

1021
00:59:45,920 --> 00:59:50,400
lacks the resources, and lacks the legal authority to do, and has worked tightly arranged to

1022
00:59:50,400 --> 00:59:55,680
engage in bombarding them with trying to throttle entire narratives that it might have a million

1023
00:59:55,680 --> 00:59:56,680
posts at a time.

1024
00:59:56,680 --> 00:59:59,680
I'm sorry, Your Honor, I thought you might have a question.

1025
00:59:59,680 --> 01:00:02,440
In any event, so I would say they're all applicable.

1026
01:00:02,440 --> 01:00:06,960
The notion that this is, I mean how can you have more joint participation when you have

1027
01:00:06,960 --> 01:00:10,920
meetings where the federal officials and the content moderation officials are all sitting

1028
01:00:10,920 --> 01:00:11,920
there talking together?

1029
01:00:11,920 --> 01:00:14,160
You have the White House saying we've got to be partners.

1030
01:00:14,160 --> 01:00:15,160
We want you to be partners.

1031
01:00:15,160 --> 01:00:20,000
And when the Facebook finding collapses, it says we want to meet with you and understand

1032
01:00:20,000 --> 01:00:22,440
what the White House expects of us going forward.

1033
01:00:22,440 --> 01:00:23,720
That's coercion.

1034
01:00:23,720 --> 01:00:27,280
That is significant encouragement, and that is also joint participation, joint action.

1035
01:00:27,280 --> 01:00:28,920
It easily satisfies all of those.

1036
01:00:28,920 --> 01:00:32,960
And because there's this long history of threats, coercion, and encouragement, the district court

1037
01:00:32,960 --> 01:00:37,400
says look, you can't tell them anymore to take down the content and the viewpoints that

1038
01:00:37,400 --> 01:00:38,400
you don't like.

1039
01:00:38,400 --> 01:00:45,120
We are looking at a situation where the injunction is broad because the misconduct is so broad

1040
01:00:45,120 --> 01:00:46,120
it's enormous.

1041
01:00:46,120 --> 01:00:50,000
And this again is the Philip Morris decision.

1042
01:00:50,000 --> 01:00:51,000
The D.C. Circuit said that.

1043
01:00:51,000 --> 01:00:53,880
They said, yeah, this is a really, really broad injunction, but you know what?

1044
01:00:53,880 --> 01:00:58,280
We've got dozens of pages of factual findings showing that you engage in misconduct for

1045
01:00:58,280 --> 01:00:59,280
years.

1046
01:00:59,280 --> 01:01:02,160
Here the district court has unrebutted factual findings of millions.

1047
01:01:02,160 --> 01:01:03,160
That's the quote.

1048
01:01:03,160 --> 01:01:04,160
Yes, Your Honor.

1049
01:01:04,160 --> 01:01:12,840
The complaint doesn't even mention WhatsApp and TikTok and Snapchat, many other very popular

1050
01:01:12,840 --> 01:01:15,440
social media platforms.

1051
01:01:15,440 --> 01:01:21,960
But the injunction does include that.

1052
01:01:21,960 --> 01:01:23,680
How is that appropriate?

1053
01:01:23,680 --> 01:01:26,160
The complaint talked about social media platforms generally.

1054
01:01:26,160 --> 01:01:32,800
But it does not include those specific ones, and the plaintiffs don't have accounts on

1055
01:01:32,800 --> 01:01:34,760
or it's not listed that they do.

1056
01:01:34,760 --> 01:01:37,600
As we pointed out in the brief, we have accounts, the plaintiffs say they have accounts in about

1057
01:01:37,600 --> 01:01:38,600
seven of those.

1058
01:01:38,600 --> 01:01:42,680
There's a finding, for example, that the FBI is meeting with seven major platforms.

1059
01:01:42,680 --> 01:01:46,320
The Election Integrity Partnership had nine major platforms that include TikTok, Reddit,

1060
01:01:46,320 --> 01:01:47,320
Nextdoor.

1061
01:01:47,320 --> 01:01:52,080
Another injunction when the plaintiffs don't even have accounts on for those and they're

1062
01:01:52,080 --> 01:01:53,520
not covered by the complaint.

1063
01:01:53,520 --> 01:01:54,960
Is that over broad?

1064
01:01:54,960 --> 01:01:59,400
No, because we have evidence that the state communications directors monitor speech across

1065
01:01:59,400 --> 01:02:00,400
social media platforms.

1066
01:02:00,400 --> 01:02:05,720
And of course, what happens on social media is that content is cross posted, right?

1067
01:02:05,720 --> 01:02:08,160
A TikTok video gets reposted on Twitter.

1068
01:02:08,160 --> 01:02:15,920
Why isn't it covered good enough for your purposes if it covers it from the ones that

1069
01:02:15,920 --> 01:02:17,920
your clients have?

1070
01:02:17,920 --> 01:02:21,040
Well, my client is in the state of Louisiana.

1071
01:02:21,040 --> 01:02:23,320
What the state of Louisiana says is we look at all of them, right?

1072
01:02:23,320 --> 01:02:27,000
I mean, that's if you read the Bosch and Flesh Declaration, they say we're monitoring social

1073
01:02:27,000 --> 01:02:29,360
media activity across these accounts.

1074
01:02:29,360 --> 01:02:32,840
And the plaintiffs say, hey, we've got accounts on seven of these.

1075
01:02:32,840 --> 01:02:35,880
And then the evidence shows that the EIP is involved in nine of them.

1076
01:02:35,880 --> 01:02:38,320
All the ones you mentioned are right there in the evidence with the federal government

1077
01:02:38,320 --> 01:02:40,740
directly interfering with speech on those platforms.

1078
01:02:40,740 --> 01:02:47,360
So there's at least nine in the record, seven or eight that sits in the FBI meet with, nine

1079
01:02:47,360 --> 01:02:49,840
that are affected by the Election Integrity Partnership.

1080
01:02:49,840 --> 01:02:53,440
And also keep in mind that the government makes a lot of threats that are addressed

1081
01:02:53,440 --> 01:02:54,440
to platforms generically.

1082
01:02:54,440 --> 01:02:56,680
It doesn't just say, hey, Facebook do this.

1083
01:02:56,680 --> 01:02:58,160
It says platforms do this.

1084
01:02:58,160 --> 01:03:00,160
I see my time has expired.

1085
01:03:00,160 --> 01:03:08,840
Was the activity of the FBI as egregious as the activity of the White House?

1086
01:03:08,840 --> 01:03:09,840
They're different.

1087
01:03:09,840 --> 01:03:12,480
And I believe they're both very egregious.

1088
01:03:12,480 --> 01:03:14,560
The FBI engage in deception.

1089
01:03:14,560 --> 01:03:18,800
So with, for example, with respect to the Hunter Biden laptop story, they said all they

1090
01:03:18,800 --> 01:03:21,080
did was to decline a common opinion investigation.

1091
01:03:21,080 --> 01:03:22,400
That's obviously not true.

1092
01:03:22,400 --> 01:03:24,480
There's lengthy findings about this in the district court's opinion.

1093
01:03:24,480 --> 01:03:29,880
He said they deliberately seeded the platforms with misleading information that a hack and

1094
01:03:29,880 --> 01:03:31,080
dump operation is coming.

1095
01:03:31,080 --> 01:03:33,120
A hack and dump operation is coming.

1096
01:03:33,120 --> 01:03:35,400
There's rumors it's going to involve Hunter Biden guys.

1097
01:03:35,400 --> 01:03:39,560
And they say these are on the agenda of the emails that we have in discovery or in the

1098
01:03:39,560 --> 01:03:42,400
record saying the hack and dunk operation is coming.

1099
01:03:42,400 --> 01:03:45,840
And then when the story and they have a laptop in their possession, there's a finding of

1100
01:03:45,840 --> 01:03:46,840
that effect.

1101
01:03:46,840 --> 01:03:49,680
They knew that it wasn't Russian disinformation.

1102
01:03:49,680 --> 01:03:55,440
And then having primed the primed the platforms to expect it as a hack and dump operation

1103
01:03:55,440 --> 01:03:56,880
would actually hit.

1104
01:03:56,880 --> 01:03:58,800
Then they said, is this Russian disinformation?

1105
01:03:58,800 --> 01:04:00,400
There's a no comment, no comment.

1106
01:04:00,400 --> 01:04:03,800
The district court found that was a deliberately misleading course of deception.

1107
01:04:03,800 --> 01:04:06,800
He also found that deception is just another form of coercion.

1108
01:04:06,800 --> 01:04:07,800
So that was deception.

1109
01:04:07,800 --> 01:04:11,200
And you see this also with respect to the Great Barrington Declaration, explicit findings

1110
01:04:11,200 --> 01:04:15,680
of providing deliberately for providing false information with the purpose of inducing them

1111
01:04:15,680 --> 01:04:19,600
to silence and stifle Americans free speech that violates the first amendment.

1112
01:04:19,600 --> 01:04:20,600
Thank you.

1113
01:04:20,600 --> 01:04:35,920
Mr. Devine, may it please the court, Joshua Devine, Solicitor General of Missouri.

1114
01:04:35,920 --> 01:04:39,560
I want to focus just on state standing and dive a little bit deeper into some of the

1115
01:04:39,560 --> 01:04:43,120
arguments that my colleague, Mr. Sauer already are already previewed.

1116
01:04:43,120 --> 01:04:47,600
Are you going to rely on the parents, Patria, or you want to not focus on that one?

1117
01:04:47,600 --> 01:04:50,200
I don't think we need to rely on parents, Patria.

1118
01:04:50,200 --> 01:04:51,760
I want to make a couple points about that.

1119
01:04:51,760 --> 01:04:55,120
But we have a million and a half different theories of standing where there isn't any

1120
01:04:55,120 --> 01:04:56,120
circuit split.

1121
01:04:56,120 --> 01:04:59,480
So I'd prefer the court to go with one of our other theories of standing.

1122
01:04:59,480 --> 01:05:03,000
That's not your strongest one and you want to move on.

1123
01:05:03,000 --> 01:05:04,000
Exactly.

1124
01:05:04,000 --> 01:05:07,480
So I do want to leave the court today with two key points.

1125
01:05:07,480 --> 01:05:10,040
And one of those will be a little bit about parents, Patria.

1126
01:05:10,040 --> 01:05:14,320
First, the federal government's actions have harmed the ability of the states to operate

1127
01:05:14,320 --> 01:05:16,000
as sovereigns.

1128
01:05:16,000 --> 01:05:20,560
And second, if we get into parents, Patria, every single time that a state has asserted

1129
01:05:20,560 --> 01:05:24,920
a quasi sovereign harm, every single time, the Supreme Court has allowed that case to

1130
01:05:24,920 --> 01:05:27,560
proceed under a parents, Patria theory.

1131
01:05:27,560 --> 01:05:31,280
So on the issue of sovereign harms, there are sort of two sovereign harms here.

1132
01:05:31,280 --> 01:05:35,260
My colleague, Mr. Sauer, addressed a number of them already with the state's own speech

1133
01:05:35,260 --> 01:05:36,560
being taken down.

1134
01:05:36,560 --> 01:05:41,660
There is a finding on page 138 of the court's opinion where the court says the court makes

1135
01:05:41,660 --> 01:05:44,880
an express finding that this is likely to continue in the future.

1136
01:05:44,880 --> 01:05:47,920
There are a lot of the reasons that the court has already said.

1137
01:05:47,920 --> 01:05:51,880
Every official in every state is constantly posting on social media.

1138
01:05:51,880 --> 01:05:53,440
This stuff gets taken down all the time.

1139
01:05:53,440 --> 01:05:58,640
Other than the one affidavit and the one paragraph, is there anything else in the record to support

1140
01:05:58,640 --> 01:05:59,640
that?

1141
01:05:59,640 --> 01:06:05,640
I think the chronology of, like my colleague, Mr. Sauer, said, the chronology here shows

1142
01:06:05,640 --> 01:06:10,160
that this is related to all of the other suppression that the federal government is responsible

1143
01:06:10,160 --> 01:06:11,160
for.

1144
01:06:11,160 --> 01:06:16,520
So we're posting a lot of, we're posting public meetings in front of local county governments,

1145
01:06:16,520 --> 01:06:20,120
things of that nature, where individuals are coming to speak, the individuals who are being

1146
01:06:20,120 --> 01:06:21,440
censored over these matters.

1147
01:06:21,440 --> 01:06:24,720
Are they still getting taken down?

1148
01:06:24,720 --> 01:06:29,240
I think the most recent example is my colleague, Mr. Sauer's take down just a couple weeks

1149
01:06:29,240 --> 01:06:30,240
ago.

1150
01:06:30,240 --> 01:06:34,160
Now, there's a second aspect of sovereign harm as well.

1151
01:06:34,160 --> 01:06:38,560
The Supreme Court has long recognized what James Madison said in Federalist 56 and what

1152
01:06:38,560 --> 01:06:41,040
courts have said for centuries.

1153
01:06:41,040 --> 01:06:46,680
Government cannot function unless individuals are able to freely speak in the public square.

1154
01:06:46,680 --> 01:06:49,800
Here's what the Supreme Court said about this in 1949.

1155
01:06:49,800 --> 01:06:53,920
The vitality of civil and political institutions depends on free discussion.

1156
01:06:53,920 --> 01:07:00,860
It is only through free debate and free exchange of ideas that government remains responsive.

1157
01:07:00,860 --> 01:07:05,240
So when the federal government blocks individuals like Plaintiff Jill Hines from organizing,

1158
01:07:05,240 --> 01:07:09,120
speaking to the community, speaking to the government, it deprives the states of the

1159
01:07:09,120 --> 01:07:12,800
information we need to exercise our sovereign functions.

1160
01:07:12,800 --> 01:07:14,480
That is more than enough.

1161
01:07:14,480 --> 01:07:19,440
I note also, it doesn't matter whether this is on Twitter or TikTok or anywhere else.

1162
01:07:19,440 --> 01:07:22,520
All of these are part of the public square under the Packingham case from the Supreme

1163
01:07:22,520 --> 01:07:24,520
Court in 2017.

1164
01:07:24,520 --> 01:07:29,600
How is this theory of third party standing materially different than a parents-patriot

1165
01:07:29,600 --> 01:07:30,840
argument?

1166
01:07:30,840 --> 01:07:36,840
So in the parents-patriot, the snap decision at page 602 makes clear that the doctrine

1167
01:07:36,840 --> 01:07:44,440
of parents-patriot only applies for two kinds of harms, a purely third party harm or a quasi-sovereign

1168
01:07:44,440 --> 01:07:45,440
harm.

1169
01:07:45,440 --> 01:07:49,520
So with respect to our sovereign harms, the entire doctrine just doesn't apply.

1170
01:07:49,520 --> 01:07:52,840
We're not under parents-patriot, we're under Kowalski instead.

1171
01:07:52,840 --> 01:07:58,280
We're under First Amendment third party standing, which the Supreme Court has said is, quote,

1172
01:07:58,280 --> 01:07:59,920
quite forgiving.

1173
01:07:59,920 --> 01:08:02,400
So we don't need to have our own First Amendment right.

1174
01:08:02,400 --> 01:08:06,560
We just need to have an Article 3 injury that is related to somebody else's First Amendment

1175
01:08:06,560 --> 01:08:07,560
right.

1176
01:08:07,560 --> 01:08:13,200
And here our injury flows from the First Amendment violations experienced by individuals.

1177
01:08:13,200 --> 01:08:16,280
So now my colleague on the other side says, well, you can only assert this if there's

1178
01:08:16,280 --> 01:08:18,800
an enforcement action against the plaintiff.

1179
01:08:18,800 --> 01:08:19,800
And that's not true.

1180
01:08:19,800 --> 01:08:22,680
Bantam Books expressly rejects that idea.

1181
01:08:22,680 --> 01:08:28,080
So in Bantam Books, you have a New York company that is challenging a Rhode Island statute

1182
01:08:28,080 --> 01:08:31,240
that has been enforced against a Rhode Island company.

1183
01:08:31,240 --> 01:08:35,480
And the Supreme Court says, well, it doesn't really matter that this isn't being enforced

1184
01:08:35,480 --> 01:08:39,360
against you, the plaintiff, because the First Amendment violation against the Rhode Island

1185
01:08:39,360 --> 01:08:44,720
company is having an economic downstream Article 3 injury on you, the plaintiff.

1186
01:08:44,720 --> 01:08:48,820
So you can exercise third party standing in the context of the First Amendment to sue

1187
01:08:48,820 --> 01:08:49,820
over that.

1188
01:08:49,820 --> 01:08:54,400
Your theories mean that, sorry, the states would have standing to sue the social media

1189
01:08:54,400 --> 01:08:59,240
companies directly, even if the remedy might be a little different?

1190
01:08:59,240 --> 01:09:06,000
I think there might be a situation where you can bring a challenge under a federal statute

1191
01:09:06,000 --> 01:09:09,760
where they're operating under color of law because of a joint participation theory.

1192
01:09:09,760 --> 01:09:11,720
Obviously, we haven't done that here.

1193
01:09:11,720 --> 01:09:17,480
I think that would be a, the theories would be quite different in that kind of circumstance.

1194
01:09:17,480 --> 01:09:24,760
Do, quick follow up, do each of your sort of theories of standing, do they independently

1195
01:09:24,760 --> 01:09:33,720
justify the injunction in its full A to Z scope, or do some theories only support certain

1196
01:09:33,720 --> 01:09:35,080
aspects of the injunction?

1197
01:09:35,080 --> 01:09:39,200
I agree with my colleague, Mr. Sauer, that each of these individually supports the entire

1198
01:09:39,200 --> 01:09:40,200
injunction.

1199
01:09:40,200 --> 01:09:44,520
I think it's easiest and clearest to see what the states, between the two states we

1200
01:09:44,520 --> 01:09:47,680
have today, we have millions of people involved.

1201
01:09:47,680 --> 01:09:51,360
I don't see any way where you couldn't have this exact injunction, especially if you have

1202
01:09:51,360 --> 01:09:52,360
state standing.

1203
01:09:52,360 --> 01:09:54,480
I understand, I see my time has expired.

1204
01:09:54,480 --> 01:09:56,440
I'm happy to answer some questions about parents' monitoring.

1205
01:09:56,440 --> 01:09:58,880
You said especially if we have state standing.

1206
01:09:58,880 --> 01:10:03,840
What if you don't have state standing, despite your points today?

1207
01:10:03,840 --> 01:10:07,080
I agree with my colleague, Mr. Sauer, that there's nothing in the injunction that is

1208
01:10:07,080 --> 01:10:11,600
pertained to the states specifically, especially given how much each of these individuals are

1209
01:10:11,600 --> 01:10:14,640
following, dozens, hundreds, thousands of other individuals.

1210
01:10:14,640 --> 01:10:17,360
So it's based upon their followership.

1211
01:10:17,360 --> 01:10:18,680
What is the best case?

1212
01:10:18,680 --> 01:10:27,120
It says a following is good enough for an injunction in this type of First Amendment.

1213
01:10:27,120 --> 01:10:33,200
The Virginia Board of Pharmacy case expressly recognizes this ability to, this First Amendment

1214
01:10:33,200 --> 01:10:35,880
right to listen, to receive information.

1215
01:10:35,880 --> 01:10:41,320
Now the other side says, well, it depends on what the targeted audience is.

1216
01:10:41,320 --> 01:10:46,600
And here, well, the targeted audience is anybody on social media who wants to follow this.

1217
01:10:46,600 --> 01:10:51,120
So we're in a totally different area than we would have been 20 years ago, 30 years

1218
01:10:51,120 --> 01:10:55,120
ago before social media, because social media has just broadened dramatically the kinds

1219
01:10:55,120 --> 01:10:56,120
of audiences.

1220
01:10:56,120 --> 01:11:00,440
I'm happy to answer a couple of questions on parents' pottery if the court desires.

1221
01:11:00,440 --> 01:11:05,720
Well, I said you keep bringing it up.

1222
01:11:05,720 --> 01:11:13,960
Massachusetts v. EPA, is it even a parents' pottery case?

1223
01:11:13,960 --> 01:11:19,520
You know, we were just talking about Brakeen, and that is definitely a parents' pottery

1224
01:11:19,520 --> 01:11:20,520
decision.

1225
01:11:20,520 --> 01:11:25,120
But is Massachusetts v. EPA a parents' pottery case?

1226
01:11:25,120 --> 01:11:29,520
It certainly does still exist.

1227
01:11:29,520 --> 01:11:31,280
It is, and it's not even the first.

1228
01:11:31,280 --> 01:11:32,280
It's the second.

1229
01:11:32,280 --> 01:11:37,160
The first is Nebraska against Wyoming from 1995, where Wyoming brings a cross-claim,

1230
01:11:37,160 --> 01:11:39,320
a counterclaim against the federal government.

1231
01:11:39,320 --> 01:11:43,200
And on page 20 of that opinion, the Supreme Court expressly says, well, they're bringing

1232
01:11:43,200 --> 01:11:47,320
a quasi-sovereign interest here, so we will allow this to proceed.

1233
01:11:47,320 --> 01:11:49,520
Massachusetts against EPA, same thing.

1234
01:11:49,520 --> 01:11:53,160
Like we do here, Massachusetts asserted a number of different injuries.

1235
01:11:53,160 --> 01:11:54,560
One was a quasi-sovereign injury.

1236
01:11:54,560 --> 01:12:02,920
But yeah, but mostly it's the injury to the state from the environmental harm.

1237
01:12:02,920 --> 01:12:04,680
Yes, that's right.

1238
01:12:04,680 --> 01:12:08,880
And the Supreme Court in footnote 17 of that opinion says that this is a quasi-sovereign

1239
01:12:08,880 --> 01:12:09,880
interest.

1240
01:12:09,880 --> 01:12:14,560
They distinguished this from Mellon, which expressly said it did not involve a quasi-sovereign

1241
01:12:14,560 --> 01:12:15,560
interest.

1242
01:12:15,560 --> 01:12:17,200
And the same thing is true in Bracken as well.

1243
01:12:17,200 --> 01:12:23,360
If you look to footnote 11 of that opinion, the Supreme Court faults Texas for raising

1244
01:12:23,360 --> 01:12:25,240
only purely private claims.

1245
01:12:25,240 --> 01:12:30,360
It says Texas hasn't raised, it did not raise anything that, quote, involved a concrete

1246
01:12:30,360 --> 01:12:31,640
injury to the state.

1247
01:12:31,640 --> 01:12:33,240
That's the problem in Texas.

1248
01:12:33,240 --> 01:12:37,600
Now you do have this quote that the other side relies on where it says, you can't bring

1249
01:12:37,600 --> 01:12:40,040
a parent's portrayal action against the federal government.

1250
01:12:40,040 --> 01:12:44,280
And of course, we pointed out that in SNAP and Kentucky against Biden, there are two

1251
01:12:44,280 --> 01:12:47,360
different kinds of parent's portrayal actions.

1252
01:12:47,360 --> 01:12:52,480
So I would just focus this court's attention on the recently decided Supreme Court case

1253
01:12:52,480 --> 01:12:57,560
Turkigal-Halke-Bunkasi, please don't make me say that twice, where the court says, general

1254
01:12:57,560 --> 01:13:02,860
language and judicial opinions should be read as referring in context to circumstances similar

1255
01:13:02,860 --> 01:13:05,200
to the circumstances then before the court.

1256
01:13:05,200 --> 01:13:09,320
And not referring to quite different circumstances the court was not then considering.

1257
01:13:09,320 --> 01:13:10,320
The Mel and Barb.

1258
01:13:10,320 --> 01:13:11,320
We have your argument.

1259
01:13:11,320 --> 01:13:12,320
Okay.

1260
01:13:12,320 --> 01:13:13,320
Thank you.

1261
01:13:13,320 --> 01:13:14,320
Thank you very much.

1262
01:13:14,320 --> 01:13:15,320
Thank you.

1263
01:13:15,320 --> 01:13:16,320
We appreciate it.

1264
01:13:16,320 --> 01:13:23,320
You saved time for rebuttal.

1265
01:13:23,320 --> 01:13:24,320
Thank you, Your Honor.

1266
01:13:24,320 --> 01:13:25,320
Thanks for the extra time.

1267
01:13:25,320 --> 01:13:26,320
Oh, sorry.

1268
01:13:26,320 --> 01:13:31,800
I wanted to start by talking about the facts.

1269
01:13:31,800 --> 01:13:36,800
The plaintiffs cite the district court's findings and then they cite their own in their brief,

1270
01:13:36,800 --> 01:13:41,320
largely their own findings, proposed findings of facts.

1271
01:13:41,320 --> 01:13:47,240
And it's really important to look past those and look at the underlying documents that

1272
01:13:47,240 --> 01:13:51,360
are in the record, because as we pointed out in our brief, and I'm not sure the plaintiffs

1273
01:13:51,360 --> 01:13:55,400
really dispute this, there are circumstances in which those things do not match up.

1274
01:13:55,400 --> 01:13:57,560
And a couple of them came up from the podium today.

1275
01:13:57,560 --> 01:14:04,440
I'll just point those out as examples, but my general point here is, you know, there's

1276
01:14:04,440 --> 01:14:07,800
a voluminous record of documentary evidence.

1277
01:14:07,800 --> 01:14:09,040
The plaintiffs had proposed findings.

1278
01:14:09,040 --> 01:14:10,880
The government had responses to those.

1279
01:14:10,880 --> 01:14:13,800
And the proposed findings cite particular materials.

1280
01:14:13,800 --> 01:14:16,000
And so just to give two examples that came up from the podium.

1281
01:14:16,000 --> 01:14:21,280
The first was the district court's finding about what it means for somebody to be accountable.

1282
01:14:21,280 --> 01:14:25,280
The citation's a little confusing there, but I think what the district court was referring

1283
01:14:25,280 --> 01:14:30,960
to was 14822 of the record with the deposition of Mr. Waldo.

1284
01:14:30,960 --> 01:14:35,720
And what he said, the question was, do you agree that accountability includes accepting

1285
01:14:35,720 --> 01:14:39,520
the consequences for when you do something wrong or inappropriate?

1286
01:14:39,520 --> 01:14:40,880
And he agreed with that.

1287
01:14:40,880 --> 01:14:45,600
Now that's accountability in the sense of, you know, I'm accountable for, you know, in

1288
01:14:45,600 --> 01:14:49,560
another place in the record, President Biden said, you know, people should look in the

1289
01:14:49,560 --> 01:14:54,400
mirror and, you know, they should be accountable in that sense.

1290
01:14:54,400 --> 01:14:57,920
And so the district court said, oh, they admitted that accountable needs consequences.

1291
01:14:57,920 --> 01:15:04,240
Well, that, I mean, you have to look at exactly what these people said, and it's really not

1292
01:15:04,240 --> 01:15:06,280
the way the district court portrayed it.

1293
01:15:06,280 --> 01:15:10,200
The second thing is, you know, they say the press secretary threatened them with legal

1294
01:15:10,200 --> 01:15:11,920
liability.

1295
01:15:11,920 --> 01:15:17,080
As we pointed out in our brief, the district court put in quotation marks words that the

1296
01:15:17,080 --> 01:15:20,560
press secretary did not say at that press briefing.

1297
01:15:20,560 --> 01:15:22,640
You have to look at the actual press briefing.

1298
01:15:22,640 --> 01:15:24,800
You can't just say, oh, they're doing all of these threats.

1299
01:15:24,800 --> 01:15:27,180
You know, they're threatening people with legal liability.

1300
01:15:27,180 --> 01:15:28,180
Look at what she said.

1301
01:15:28,180 --> 01:15:33,920
And what she said is just, you know, there was a mention, a litany of policy proposals,

1302
01:15:33,920 --> 01:15:36,920
you know, more privacy protections, robust antitrust.

1303
01:15:36,920 --> 01:15:39,720
You know, they talk about reforms to Section 230.

1304
01:15:39,720 --> 01:15:42,280
These are the sorts of things a press secretary has to be talking about.

1305
01:15:42,280 --> 01:15:46,520
The other mention of antitrust, as we discussed in our reply brief, was in response to a question

1306
01:15:46,520 --> 01:15:48,600
about oligarchies.

1307
01:15:48,600 --> 01:15:53,440
And she said, you know, we support reforms in antitrust law.

1308
01:15:53,440 --> 01:15:54,840
These are not threats.

1309
01:15:54,840 --> 01:16:00,160
The idea that you would say those statements by the press secretary meant that if you don't

1310
01:16:00,160 --> 01:16:04,880
follow specific directions from the White House about taking down particular posts,

1311
01:16:04,880 --> 01:16:08,680
we are going to change the antitrust laws and change Section 230.

1312
01:16:08,680 --> 01:16:11,680
If the district court made a factual finding like that, it's clearly erroneous.

1313
01:16:11,680 --> 01:16:13,520
I'm not sure the court actually did.

1314
01:16:13,520 --> 01:16:15,160
But if it did, that's clearly erroneous.

1315
01:16:15,160 --> 01:16:16,160
That is not support.

1316
01:16:16,160 --> 01:16:20,840
What about the president's own comments that social media platforms are quote, killing

1317
01:16:20,840 --> 01:16:22,920
people unquote.

1318
01:16:22,920 --> 01:16:27,440
No threat in that statement, but powerful nonetheless.

1319
01:16:27,440 --> 01:16:28,440
Correct.

1320
01:16:28,440 --> 01:16:31,680
It may be a powerful statement.

1321
01:16:31,680 --> 01:16:37,320
And so the legal question then would be, is it proper for a district court to say the

1322
01:16:37,320 --> 01:16:43,200
president can't make powerful statements trying to persuade the public about what people should

1323
01:16:43,200 --> 01:16:44,200
or should not do?

1324
01:16:44,200 --> 01:16:48,080
The president isn't subject to this injunction.

1325
01:16:48,080 --> 01:16:50,920
I thought he was specifically...

1326
01:16:50,920 --> 01:16:51,920
That's correct.

1327
01:16:51,920 --> 01:16:56,440
But so, you know, if the press secretary had said that about the president's views, you

1328
01:16:56,440 --> 01:16:58,200
know, that would be subject to it.

1329
01:16:58,200 --> 01:17:05,840
And it's extraordinary to say if the president's view is that certain conduct of disseminating

1330
01:17:05,840 --> 01:17:11,840
information is harming the public safety of the United States of America, that the press

1331
01:17:11,840 --> 01:17:15,040
secretary cannot express that view.

1332
01:17:15,040 --> 01:17:19,560
If it's backed by a threat, if it says, and if you don't do what we want, then this will

1333
01:17:19,560 --> 01:17:21,640
happen to you, that's different.

1334
01:17:21,640 --> 01:17:22,640
That's what the cases are about.

1335
01:17:22,640 --> 01:17:24,600
But that's not what happened in this case.

1336
01:17:24,600 --> 01:17:26,720
For any of this.

1337
01:17:26,720 --> 01:17:28,040
It's not just that one.

1338
01:17:28,040 --> 01:17:29,040
They haven't named one.

1339
01:17:29,040 --> 01:17:30,720
You know, they flag things.

1340
01:17:30,720 --> 01:17:31,720
They flag...

1341
01:17:31,720 --> 01:17:39,880
You know, they say the FBI got a 50% rate of having the posts that it identified taken

1342
01:17:39,880 --> 01:17:40,880
down.

1343
01:17:40,880 --> 01:17:42,760
I'm surprised it's that low.

1344
01:17:42,760 --> 01:17:46,080
Usually the FBI is probably right about whether it's foreign influence or not.

1345
01:17:46,080 --> 01:17:48,080
The social media companies...

1346
01:17:48,080 --> 01:17:54,400
The idea that the social media companies felt like they had to bend to the FBI's will when

1347
01:17:54,400 --> 01:17:55,400
half the time they didn't.

1348
01:17:55,400 --> 01:17:57,480
I mean, this is just...

1349
01:17:57,480 --> 01:17:59,800
This doesn't support any of these theories.

1350
01:17:59,800 --> 01:18:03,200
I'd like to just point out the chronological point we made in our brief.

1351
01:18:03,200 --> 01:18:10,680
Twitter and the other social media companies adopted policies in 2020 about COVID misinformation.

1352
01:18:10,680 --> 01:18:18,080
They say this is attributable either to a White House pressure campaign that began in

1353
01:18:18,080 --> 01:18:19,600
2021, which is obviously not true.

1354
01:18:19,600 --> 01:18:21,200
We didn't go in a time machine.

1355
01:18:21,200 --> 01:18:26,600
Or they say it's attributable to congressional pressure from before then, which is not part

1356
01:18:26,600 --> 01:18:27,600
of this case.

1357
01:18:27,600 --> 01:18:32,080
You can't sue the executive branch and say members of Congress put too much pressure

1358
01:18:32,080 --> 01:18:33,840
on social media companies.

1359
01:18:33,840 --> 01:18:36,000
That's their whole theory of coercion.

1360
01:18:36,000 --> 01:18:39,720
The whole thing falls apart on the facts.

1361
01:18:39,720 --> 01:18:44,800
Now, just a couple points about what happened in the district court, and I see my time is

1362
01:18:44,800 --> 01:18:45,800
running out.

1363
01:18:45,800 --> 01:18:49,800
They say you don't have to get into social significant encouragement.

1364
01:18:49,800 --> 01:18:52,220
I think I heard him say that.

1365
01:18:52,220 --> 01:18:57,760
For some agencies, all the district cap found was significant encouragement, not coercion.

1366
01:18:57,760 --> 01:19:00,000
So if...

1367
01:19:00,000 --> 01:19:01,920
He may think that it satisfies the...

1368
01:19:01,920 --> 01:19:10,040
Does coercion necessarily entail a threat, either overt or covert?

1369
01:19:10,040 --> 01:19:19,040
Isn't a directive itself enough to constitute unconstitutional coercion absent and or else

1370
01:19:19,040 --> 01:19:21,480
consequence?

1371
01:19:21,480 --> 01:19:26,120
I guess I'm not sure what a directive means without a threat.

1372
01:19:26,120 --> 01:19:27,160
Do this.

1373
01:19:27,160 --> 01:19:28,280
Why haven't you done this?

1374
01:19:28,280 --> 01:19:29,280
Get this done.

1375
01:19:29,280 --> 01:19:30,280
F-bomb, do this.

1376
01:19:30,280 --> 01:19:37,360
I mean, the F-bomb thing, to be clear, is not about content moderation at all.

1377
01:19:37,360 --> 01:19:40,280
So I just put that out there.

1378
01:19:40,280 --> 01:19:44,320
But I think the reason things...

1379
01:19:44,320 --> 01:19:50,120
If you yell and scream at somebody to do something, but there's no consequence if they don't do

1380
01:19:50,120 --> 01:19:51,600
it, no, I don't think that's coercion.

1381
01:19:51,600 --> 01:19:53,080
Wasn't it about taking something down?

1382
01:19:53,080 --> 01:19:54,080
What?

1383
01:19:54,080 --> 01:19:55,480
Wasn't it about taking something down?

1384
01:19:55,480 --> 01:20:04,040
No, it was about the president's Instagram account and something that had happened to

1385
01:20:04,040 --> 01:20:05,040
it.

1386
01:20:05,040 --> 01:20:06,280
Okay.

1387
01:20:06,280 --> 01:20:09,960
Two last points.

1388
01:20:09,960 --> 01:20:12,760
One about what happened in the district court.

1389
01:20:12,760 --> 01:20:16,120
The question about whether you can take judicial notice is only part of the question.

1390
01:20:16,120 --> 01:20:18,880
I mean, the other thing is these materials were not...

1391
01:20:18,880 --> 01:20:20,600
Maybe the district court could have taken judicial notice.

1392
01:20:20,600 --> 01:20:22,240
We would probably dispute that.

1393
01:20:22,240 --> 01:20:24,600
But these materials were not before the district court.

1394
01:20:24,600 --> 01:20:28,840
They're not a basis for upholding the district court's conclusion.

1395
01:20:28,840 --> 01:20:33,400
If the plaintiffs had come in with a new declaration on appeal, that might be admissible evidence,

1396
01:20:33,400 --> 01:20:35,600
but that doesn't mean this court could consider it in this appeal.

1397
01:20:35,600 --> 01:20:37,400
So that should just be out.

1398
01:20:37,400 --> 01:20:41,160
And on a related topic in terms of what was in the district court, on listener standing,

1399
01:20:41,160 --> 01:20:44,360
the district court didn't adopt listener standing.

1400
01:20:44,360 --> 01:20:45,640
I see my time is up.

1401
01:20:45,640 --> 01:20:48,800
If I could wrap up very quickly.

1402
01:20:48,800 --> 01:20:52,160
And all the district court said on the subject in the context of class certification was

1403
01:20:52,160 --> 01:20:57,880
it didn't think the plaintiffs had established, that they were harmed by things that happened

1404
01:20:57,880 --> 01:20:59,200
to other people.

1405
01:20:59,200 --> 01:21:02,680
And that just ties into the point that standing is not dispensed in gross.

1406
01:21:02,680 --> 01:21:06,880
You have to find for each claim as to each defendant, each thing you're trying to enjoin,

1407
01:21:06,880 --> 01:21:09,520
that it's gonna harm these individual plaintiffs.

1408
01:21:09,520 --> 01:21:10,520
Thank you, Your Honor.

1409
01:21:10,520 --> 01:21:13,160
We request that the preliminary injunction be reversed.

1410
01:21:13,160 --> 01:21:17,640
I just wanted to close by reminding the court, if the court is disinclined to do that, I

1411
01:21:17,640 --> 01:21:21,320
would just remind the court that we have asked that the court extend the stay for at least

1412
01:21:21,320 --> 01:21:26,040
10 days in case the Solicitor General wishes to pursue Supreme Court review.

1413
01:21:26,040 --> 01:21:27,040
Thank you.

1414
01:21:27,040 --> 01:21:28,040
We have your argument.

1415
01:21:28,040 --> 01:21:30,040
We appreciate all the arguments here today.

1416
01:21:30,040 --> 01:21:58,600
The court will stand adjourned pursuant to the usual order.