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Monday, March 18, 2024

Trump Law Redux

The Supreme Court hears arguments today in two cases involving the use of government pressure and/or "jawboning" to influence the decisions of private parties. Murthy v. Missouri is another Fifth Circuit special concerning the degree to which the government can communicate with, or lean on and coordinate with, social media companies to influence their content moderation policies. National Rifle Association v. Vullo asks how far the government can go in using its regulatory power to pressure companies to stop doing business with a politically disfavored group. 

A good deal of the media discussion has had to do with the serious issue (however dubious most of the public discussion and a good deal of the nascent academic "discipline" may be) of "misinformation," questions of social media platform responsibility, how far government can go in leveraging its power and conversely, how much the courts can or should limit government from engaging in normal regulatory, oversight, and communicative activity. All valid questions, and there are more besides. But if I may venture a mild suggestion: The question the Court should be asking, albeit perhaps quietly, has less to do with current or past events. Rather, the Court is now in "pathological First Amendment" territory. It should be asking: What sort of opinions should it write in these cases with a future presidential administration in mind that may be irregular, vengeful, and punitive?   

Posted by Paul Horwitz on March 18, 2024 at 08:41 AM in Paul Horwitz | Permalink


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