Transcript [00:03] Good afternoon everyone and welcome to [00:05] Fed Soc Forums. My name is Andrew [00:07] Brechard and I'm a first-year law [00:09] student at George Mason University [00:11] Antonin Scalia Law School. I also serve [00:13] as the student liaison to the Federalist [00:15] Society's free speech practice group. [00:18] As a reminder, all opinions expressed [00:20] are those of our speakers and not of the [00:22] Federalist Society as the Federalist [00:24] Society takes no positions. [00:26] Today's program is titled corporate [00:28] speech in the crosshairs new frontiers [00:30] in First Amendment law. We are very [00:33] pleased to welcome our moderator Gene [00:35] Schaerr is a partner at Schaerr Jaffe [00:37] LLP. He has argued and won dozens of [00:40] cases in a variety of forums including [00:42] the US Supreme Court where he has argued [00:44] six cases, every federal circuit and [00:46] numerous federal district courts and [00:48] state appellate courts. [00:50] Full and impressive bios for all of our [00:52] speakers are available on our website [00:54] fedsoc.org. [00:56] One note for our audience before we [00:57] begin, if you have any questions [00:59] throughout the webinar that pertain to [01:01] the topic at hand, please submit them [01:02] through the Zoom's Q&A feature located [01:04] at the bottom of your screen, not the [01:06] chat so that we'll be able to access [01:08] them later in the program. [01:10] With that note, I'll turn things over to [01:11] our speakers to start the conversation. [01:13] Gene, thanks so much for joining us and [01:15] moderating today's discussion. [01:18] >> Thank you Andrew and thanks to the [01:20] Federalist Society for for hosting this [01:23] very important um [01:25] webinar today. Um [01:27] as as I think everybody joining us is [01:30] probably aware, First Amendment debates [01:32] often focus on individuals. [01:35] Um you know, the the classic example of [01:38] uh you know, a lone pro protester out [01:40] exercising his or her free speech [01:43] rights, but many of today's most [01:45] consequential First Amendment questions [01:48] uh concern legal entities like [01:50] businesses, uh even religious [01:52] organizations and other nonprofits, [01:54] trade associ- associations and the full [01:57] range of organizations through which [01:59] people speak and act collectively. [02:03] Um and and I believe those kinds of [02:05] organizations are crucial to the ability [02:08] of individuals to be able to exercise [02:10] their First Amendment rights. [02:12] Uh but today we're seeing a lot of [02:14] pressure uh from a variety of sources on [02:17] the First Amendment rights of entities. [02:20] Uh for example, we see increased efforts [02:22] to expand what's called the commercial [02:24] speech doctrine, [02:26] uh which is a doctrine developed for [02:28] traditional advertising, but it [02:30] typically has the effect of reducing [02:33] First Amendment protections for [02:34] businesses. [02:36] Uh we also see increased efforts to uh [02:39] to force businesses and and even [02:43] uh nonprofits and other organizations to [02:45] uh uh to uh express [02:49] governmental messages of one kind or [02:51] another, and governments across the [02:52] political spectrum increasingly use [02:54] private organizations to advance their [02:57] own policy objectives. Um [02:59] and we're also seeing uh increasing [03:02] efforts to use investigative demands [03:04] that target all kinds of expressive [03:06] associations. [03:08] Um and those also can have an have an [03:11] important chilling effect on the [03:12] exercise of First Amendment rights. [03:15] Um [03:17] Our topic today is very timely though [03:19] because uh currently the US Supreme [03:21] Court has two opportunities to address [03:25] uh some of these issues uh [03:27] in the Suncor case and the Apple and [03:29] Epic cases that will that we that we'll [03:32] be talking about uh a little later [03:34] today. [03:35] Uh [03:36] all of our panelists are well equipped [03:37] to enlighten us on these developments um [03:40] on on where the law seems to be heading [03:43] and and on where it should be going. [03:46] Uh our first speaker today will be Owen [03:48] Yeates, who's a senior attorney at the [03:50] Institute for Free Speech. Owen has [03:52] spent most of his career on the front [03:54] lines of political speech including [03:57] campaign finance issues and association [03:59] cases. [04:01] He first joined the Institute for Free [04:03] Speech in 2015 then rose to deputy vice [04:06] president for litigation and and for a [04:08] time served as the acting legal [04:10] director. [04:11] And after a tour as a deputy district [04:14] attorney in Oregon, he returned to the [04:16] Institute earlier this year. [04:18] He holds not only a JD from Stanford but [04:22] also a PhD in political science from [04:24] Duke. And he clerked on both the ninth [04:27] and the 10th circuit [04:29] and he's going to tell us about some [04:30] recent developments in the states. Owen. [04:37] >> Thank you. Yeah, so we recently filed a [04:40] challenge on behalf of a client called [04:43] the Grassroot Institute of Hawaii [04:45] against a new law called Act 11. [04:49] And it's uh [04:51] one among many efforts [04:54] be pushing a similar law around the [04:56] country to not just [04:58] discourage speech but outright ban it. [05:01] So it's based on the claim that Citizens [05:05] United unleashed a torrent of corporate [05:08] and [05:09] dark what they call dark money in [05:11] politics. They claim that it's [05:13] dominating politics and drowning out the [05:16] speech of average Americans. [05:19] Um couple of misconceptions about [05:21] Citizens United. One, it was not about [05:24] contributions to a candidate. Wasn't [05:26] even about a large corporation making [05:28] independent expenditures. It was about a [05:30] nonprofit that wanted to show a movie [05:32] about Hillary Clinton and a law that [05:36] said that it couldn't show that movie. [05:38] Um but the proponents of laws like [05:41] Hawaii's Act 11 feel like they found a [05:43] trick to get around the rights of [05:46] corporations to speak that Citizens [05:48] United reiterated merely reiterated [05:51] decades of law about that. [05:54] Um but their claim is that corporations [05:57] are the creation of the state. [05:59] And the state can decide whether to let [06:01] them exist or not. [06:04] And as creatures of the state, the state [06:07] can define powers of a corporation as it [06:10] wishes. That includes whether to grant [06:13] or deny a corporation the power to speak [06:15] at all [06:16] or whether to give it the power to speak [06:18] about everything but candidate and or [06:22] ballot measure activity. [06:25] And they claim that this avoids [06:27] violating the First Amendment in two [06:28] ways. One, there's a long history of [06:31] cases going all the way back to the [06:33] Dartmouth case holding that corporations [06:35] are artificial beings and that the state [06:38] accordingly has plenary power to define [06:41] corporate powers. [06:43] And second, that by taking away the [06:45] power, there's nothing for a right to [06:48] attach to. [06:49] If there's no power to speak, well then [06:52] it's nonsensical to say that you're [06:54] violating a right to speak. [06:56] And one of the proponents of this kind [06:58] of law has said that there's an analogy [07:00] that if the Supreme Court said humans [07:02] had a right to fly, [07:04] the very basic inability of human beings [07:06] to fly would mean that you couldn't ever [07:08] infringe that right. [07:11] Um for this new law to succeed, it would [07:15] be really dangerous in in two ways. One, [07:19] the the language that they're using for [07:21] the law is very vague and broad. It [07:24] doesn't just cover candidate advocacy [07:27] and ballot measure advocacy. Because of [07:30] the way it's worded saying that it uh [07:33] corporations lack the power to directly [07:35] or indirectly engage in activity that [07:39] supports or opposes uh candidates or [07:42] ballot measures, [07:44] people have no idea what that will [07:45] cover. I mean, it could cover even [07:48] talking about an issue that's become a [07:51] primary issue in a campaign. [07:53] But two, this justification that they're [07:56] using, if it's real, could be used to to [08:00] take away a lot of what we know as [08:02] corporate rights [08:04] and get rid of missions and activities. [08:06] They could condition incorporation on [08:09] not speaking about where I am, Native [08:11] Hawaiians. They could prohibit law firms [08:14] as a requirement of incorporation from [08:16] representing groups that are distrusted. [08:20] Uh they could say that if you're a [08:21] corporation, you have to submit to [08:22] uncompensated takings. [08:25] There are a number of problems with this [08:27] kind of law. Legally, it's [08:29] unconstitutionally overbroad. Even by [08:32] their theory, they extended it to [08:34] out-of-state corporations, but the state [08:37] of Hawaii, for example, doesn't give [08:39] powers that this corporation from [08:42] Delaware or Washington State has. [08:45] Uh like I said, they have vague and [08:47] overbroad language that's going to shut [08:49] down a lot of speech. [08:52] But also, they mischaracterize the [08:54] nature of corporations. If you go all [08:57] the way back to the beginning, even in [08:59] first cases saying that corporations [09:02] were artificial beings, they were still [09:04] basing a corporation's right to get into [09:07] court based on the rights of its [09:09] members. [09:11] And the Supreme Court, as [09:14] as cases developed over time, has [09:17] continued to say that part of the reason [09:18] why corporations can exercise First [09:21] Amendment rights is to exercise the [09:23] rights of their members, of those [09:25] associating through them, [09:27] but also to protect the rights of the [09:29] public who have a right to hear [09:32] what the corporations say. [09:35] Practically, this kind of law silences [09:38] all of the groups that people used to [09:41] speak for themselves. Uh the president [09:43] of People United for Privacy called it a [09:45] Tocquevillian nightmare [09:47] because associations are are one of the [09:51] principal ways that make it so that [09:53] people in our country feel heard, that [09:54] they have a part in the political [09:55] process, that they don't say, "Hey, [09:58] let's just turn everything over to the [10:00] state." Um that they don't feel [10:02] separated and alone and helpless and [10:05] tear down everything else. [10:07] But also because it amplifies our voice, [10:10] it gives us a stake in the system that [10:12] we feel like we won't be ignored. [10:15] And this kind of law destroys that. It [10:17] muzzles all of the groups that we turn [10:20] to to share our voice. And we've already [10:23] had an amicus brief from the ACLU's [10:25] national office talking precisely about [10:28] this, about how it'll muzzle them and [10:30] and efforts of groups like them. [10:33] Um and the only people that are left to [10:35] speak, ironically, are candidates and [10:38] parties who want to control all the [10:40] messaging, [10:41] pacs, and very wealthy individuals who [10:44] have the resources to get the message [10:45] out on their own. [10:47] Um [10:48] this law is being pushed hard by [10:50] especially by the two groups that are [10:53] have organized it, that came up with it. [10:55] People United for Privacy have a nice [10:57] report with a map showing 34 bills in 18 [11:00] states as of July. [11:02] One of these laws has passed in Hawaii. [11:04] It's on the ballot in November. There [11:06] are pending bills in Michigan, [11:08] California, Pennsylvania. One of the [11:10] groups claims there are also bills in [11:12] Missouri and New York. It was [11:14] temporarily killed in Massachusetts, [11:16] where it's a ballot initiative. [11:18] There is a ballot initiative that was [11:19] just filed in Oregon. A Tennessee [11:21] legislator says they intend to file it [11:23] in January. Um [11:26] so there there and they've pledged to [11:28] continue to push this. So it's going to [11:31] appear in courthouses around the [11:32] country. [11:33] Our hope is that early victories will [11:35] stop this momentum. [11:37] We just filed a challenge in June. The [11:39] US Chamber of Commerce joined with us [11:41] with its own challenge the law recently. [11:44] And beyond litigation, we need to be [11:46] vigilant in the state houses around the [11:48] country. [11:51] I'll stop there. [11:53] >> Thank you, Owen. Um [11:56] we'll move on to our next speaker who's [11:58] also going to talk about some [11:59] developments at the state level. Ryan [12:01] Bangert [12:03] uh is the senior vice president for [12:05] strategic initiatives and special [12:07] counsel to the president at Alliance [12:09] Defending Freedom. [12:11] He oversees ADF's regulatory practice, [12:13] government relations, and corporate [12:15] engagement work. Uh exactly the space [12:18] where governments are now trying to [12:20] compel, restrict, or punish what [12:21] businesses say. [12:23] Um and uh I've personally had the [12:25] pleasure of working with with Ryan on a [12:28] on a major case out in the Ninth Circuit [12:30] and [12:31] can attest to his litigation skill. [12:34] Before ADF, Ryan was a deputy first [12:36] assistant attorney general in Texas and [12:38] was also a deputy for civil litigation [12:41] in Missouri under then Attorney General [12:43] Josh Hawley. Uh he was a trial partner [12:45] at Baker Botts and also clerked for [12:47] Judge Patrick Higginbotham on the Fifth [12:50] Circuit. Uh Ryan, what else can you tell [12:52] us about developments at the state [12:54] level? [12:55] >> Well, thank you, Gene, for that kind [12:56] introduction and thank you to the [12:57] Federalist Society for hosting this [12:59] important conversation. [13:01] Alliance Defending Freedom litigates [13:03] often on behalf of clients whose free [13:06] speech rights are trampled. And [13:08] interestingly, many of those clients are [13:10] organizations. They're not individuals. [13:13] And this problem that we're talking [13:14] about today, the one that I specifically [13:16] want to get at is what I call the [13:17] reclassification [13:19] or relabeling problem. The state wants [13:21] to regulate businesses. Businesses often [13:24] times engage not just in commercial [13:26] conduct, but also speech. And the courts [13:30] oftentimes struggle with how to apply [13:32] the First Amendment in the context of [13:34] entities and organizations that are [13:36] engaging in both commercial conduct as [13:38] well as core protected speech. And what [13:42] we have seen at ADF frequently is that [13:45] states will attempt to regulate what [13:47] should be core First Amendment protected [13:50] speech, [13:51] regulation of which should be subject to [13:53] strict scrutiny, [13:55] under lesser standards by simply [13:57] reclassifying [13:58] that core protected speech in various [14:01] ways as commercial speech, professional [14:03] speech, speech incident to conduct, or [14:06] conduct itself. And there are several [14:07] examples of that that I want to run [14:09] through very quickly in the brief time [14:11] that we have. But the first case that I [14:12] want to talk about is one from a few [14:14] years ago called NIFLA versus Becerra. [14:17] This is a case out of California that [14:19] was ultimately decided by the US Supreme [14:20] Court. California passed a law called [14:23] the FACT Act that governed clinics that [14:25] served pregnant women. Now, the FACT Act [14:28] required that licensed clinics notify [14:30] women in California [14:32] um that the state of California provided [14:34] free and low-cost services, including [14:36] abortions, and to provide a phone number [14:39] for those services. Now, this obviously [14:41] had a dramatic impact on pro-life [14:44] pregnancy resource centers whose whole [14:45] mission was to provide an alternative to [14:48] abortion. So, they sued and argued that [14:50] this infringed their First Amendment [14:51] rights. And the interesting thing that [14:53] the state of California did was it [14:54] argued that it was simply regulating a [14:56] category of speech that they called [14:58] professional speech. And the Ninth [15:00] Circuit bought that argument and said [15:02] that professional speech was this [15:04] special form of lesser protected speech [15:06] because it was speech that took place in [15:08] the professional context. And of course, [15:11] this was this was in the context of [15:12] licensed clinics. These were clinics [15:14] that were licensed by the state, [15:15] licensed professionals. And the Supreme [15:18] Court rejected that outright and said, [15:21] "No, there is no special category of [15:23] lesser protected speech called [15:25] professional speech. There are instances [15:28] where the state may regulate what [15:29] professionals say in a very narrow [15:31] circumstances, such as what happened in [15:33] Zauderer or Rallick, where the where the [15:36] instances of regulation involved factual [15:39] non-controversial information. Or it was [15:42] purely speech incidental to professional [15:44] conduct. But here, the speech that was [15:47] being compelled on the part of these [15:48] pregnancy resource centers was speech on [15:50] a very controversial topic, abortion, [15:53] and speech that directly contradicted [15:55] the mission of the pregnancy centers. [15:57] So, the court dispensed with this notion [15:59] that there is this broad unprotected [16:02] category of speech in the business and [16:04] professional context called professional [16:06] speech. That was tested again, very [16:08] recently, this past term in Chiles [16:10] versus Salazar. This is a case involving [16:13] our client Kaylee Chiles, a licensed [16:15] counselor in the state of Colorado, who [16:17] ran a foul of a Colorado law called a [16:19] conversion therapy ban. Now, this ban uh [16:22] prevented licensed counselors from [16:24] counseling their clients who were [16:26] struggling with such conditions as [16:28] gender dysphoria in ways that would lead [16:31] them back to reconciling their gender [16:33] identity with their biological sex. But [16:35] the state of Colorado said it was [16:36] perfectly fine and unobjectionable to [16:39] counsel these clients in the opposite [16:41] direction, toward embracing a [16:42] transgender identity. Now, clearly a [16:45] viewpoint-based type of restriction, but [16:48] the state of Colorado argued it was [16:50] perfectly permissible because all they [16:52] were doing was regulating professional [16:54] conduct, therapy. And in this case, the [16:57] therapy was conversion therapy. Now, the [17:00] Supreme Court had very little patience [17:03] for that argument. The court wrote, this [17:05] is Gorsuch writing, said that speech [17:08] does not simply become unprotected [17:10] conduct because the government says so [17:12] or it says so. In a very interesting [17:14] line from the opinion, he said the First [17:16] Amendment is no word game and the [17:18] exercise of constitutional rights cannot [17:20] be circumscribed by mere label. So, a [17:23] very specific call out by Justice [17:26] Gorsuch to this effort [17:28] by states to to afford lesser protection [17:32] to core first amendment speech simply by [17:34] relabeling it as something else. Now, [17:38] there's a second category of cases that [17:40] we have litigated around commercial [17:42] conduct outside the professional [17:45] context, but commercial transactions [17:48] that involve speech imbued or speech [17:50] laden products. The most famous case, of [17:53] course, was Masterpiece Cake Shop. A [17:55] cake that was designed by Jack Phillips [17:57] that was going to be celebrating a [17:59] wedding and these were custom designed [18:01] cakes. Mr. Phillips [18:03] was a is a cake artist. He imbued these [18:05] cakes with his own personal touch, his [18:07] own personal expression. The court never [18:09] decided the first amendment cake [18:12] question on free speech grounds in that [18:13] case. That was deferred till later. And [18:15] later was 303 Creative versus Elenis [18:17] just a few years ago. That was a case [18:19] involving a website design company, 303 [18:23] Creative, an organization that was [18:25] incorporated in Colorado, run by Lorie [18:28] Smith. Lorie Smith is a website [18:30] designer, a custom website designer, and [18:32] she would custom design websites for [18:34] such such occasions as weddings, [18:37] but she would not design websites for [18:39] same-sex weddings. This, of course, ran [18:41] a foul of the Colorado [18:42] Anti-Discrimination Act, otherwise known [18:44] as CADA. [18:45] So, this case goes up to the 10th [18:47] Circuit and what the 10th Circuit found [18:50] was that the speech that Miss Smith was [18:53] engaging in was simply unprotected. It [18:56] was commercial conduct. This was simply [18:58] a commercial transaction. It was a [19:01] transaction involving a website. It did [19:04] not implicate pure speech. At the very [19:06] at the very most, it might be protected [19:09] under intermediate scrutiny, but the [19:11] state argued it wasn't even protected at [19:13] all. It was rational basis effectively. [19:15] And with the Supreme Court again had [19:17] very little patience for this argument. [19:21] The court found that Ms. Smith through [19:24] her creation of custom websites was [19:26] engaging in what the court called pure [19:28] speech. And that pure speech had to be [19:31] evaluated under strict scrutiny, not [19:34] under lesser forms of scrutiny. The fact [19:37] that this speech took place in the [19:39] context of commercial transaction and [19:42] the fact that the speech itself was the [19:44] product subject to the commercial [19:45] transaction did not remove it from the [19:48] ambit of the First Amendment. Did not [19:50] eliminate full First Amendment [19:52] protection for this speech even though [19:54] the speech itself was imbued into and [19:58] part of the product subject to the [20:01] commercial transaction. Now, Gina, I [20:03] want to end on a case that's pending [20:05] right now in the Fifth Circuit that [20:07] takes this argument to a whole new [20:09] level. And that's CCIA versus Paxton. [20:12] It's a challenge to SB 2420, which is [20:15] the Texas App Store Accountability Act, [20:17] which took which went into effect on [20:18] January 1st of this year. [20:21] This is a statute that requires App [20:23] Stores to verify the age of every person [20:26] who creates an account, to link minors [20:29] accounts to parents accounts, and to [20:30] obtain parental consent for all [20:32] downloads of apps and in-app purchases [20:35] by minors. This was challenged by the [20:37] trade association, the CCIA. And in [20:40] December, Judge Pittman, uh December of [20:43] last year, Judge Pittman in Fort Worth [20:45] concluded that the law is a [20:47] content-based restriction on speech. He [20:50] applied strict scrutiny, and he enjoined [20:52] it. And he compared the law to a [20:55] requirement that bookstores check every [20:57] customer's age at the door and then [20:59] require a parent's permission for every [21:01] book purchase. So, that's how he [21:03] characterized the law. This went up to [21:05] the Fifth Circuit, and the Fifth Circuit [21:07] entered a stay of the injunction and [21:10] issued a procuriam order to to back up [21:13] its denial of the stay or its grant of [21:15] the stay request. And there's some very [21:17] interesting pieces of this opinion, this [21:19] procuriam order granting a stay. [21:23] And what the Fifth Circuit did was it [21:24] said this law, this App Store [21:26] Accountability Act, [21:28] regulates transactions that are purely [21:31] commercial in nature. It didn't look [21:33] behind these transactions at the fact [21:35] that many of these apps facilitate [21:37] speech. It simply said these are [21:39] commercial transactions. These apps are [21:41] purchased either with money or in some [21:43] cases, if the app is free, it's [21:45] purchased with the exchange of data. [21:47] Contracts that exchange data for [21:50] services. So in in either case, the the [21:52] procuriam panel found that these were [21:54] commercial transactions. In fact, in a [21:56] footnote, the panel even observed that [21:58] SB 2420 may not quote this is quote from [22:01] the from the opinion may not regulate [22:03] speech at all, given that it does not [22:05] target any substance of content, but [22:07] instead regulates commercial conduct [22:09] with an incidental relationship to [22:11] speech. Now, very interestingly, the law [22:13] carved out two types of apps, emergency [22:15] services apps and apps that provided [22:17] access to educational content. In both [22:20] cases, the panel said these are not [22:22] content-based carve-outs. They're either [22:24] in one case a purpose-based carve-out or [22:26] in the other a speaker-based carve-out, [22:29] neither of which the panel found to be [22:31] content-based. So, this is a very [22:33] interesting opinion. It was taken up to [22:35] the US Supreme Court. The Supreme Court [22:37] declined to lift the stay. So, the stay [22:39] of the injunction is still in place. The [22:40] law is still in effect. And argument in [22:42] this case on the merits or I'm sorry, [22:45] the merits of the injunction was heard [22:47] on August 4th. So, we'll find out very [22:48] quickly what the full panel thinks. But [22:50] this is a very interesting case to be [22:52] following. [22:56] >> Thank you very much, [22:58] Ryan. [22:59] Uh we'll turn next to Darpona Sheth, who [23:02] is the general counsel of the Center for [23:04] Individual Rights. [23:06] Uh she's a nationally recognized First [23:08] Amendment litigator. Uh and before she [23:12] started at the at the Center for [23:13] Individual Rights, she spent 4 years as [23:16] vice president of litigation at FIRE. [23:19] Uh where she built the litigation shop [23:21] from two lawyers to more than 20 and [23:23] helped take that organization from [23:25] primarily a campus speech organization [23:27] to a nationwide defender of free [23:29] expression. [23:30] Uh before that, she was also a senior [23:32] attorney at the institution at the [23:34] Institute for Justice. [23:36] She clerked for Judge Jerome Holmes on [23:38] the 10th Circuit, uh served as an [23:40] assistant attorney general in New York, [23:43] and also sits on the executive committee [23:45] of the Federalist Society's Free Speech [23:47] Practice Group. And she's going to tell [23:49] us [23:50] she's going to bridge uh between state [23:53] restrictions and state regulations and [23:56] and also discuss some [23:58] some recent and pending federal [24:00] regulations of speech. [24:03] >> Okay. Thanks, Gene, for that kind [24:04] introduction. [24:06] Um so yeah, I'll start with one last [24:07] example of a state mandate before [24:10] discussing federal regulations. And this [24:12] one comes out of New York. Uh last [24:14] December, New York's environmental [24:16] agency issued a rule requiring [24:19] businesses to tell the state every year [24:22] how much greenhouse gas they are [24:24] responsible for. [24:25] It covers big factories and power [24:27] plants, but it also covers anyone who [24:30] sells fuel that ends up in New York, no [24:32] matter how small. And that includes an [24:34] ethanol plant in Iowa that has never set [24:37] foot in New York because its fuel gets [24:40] blended and shipped there by somebody [24:42] else. [24:43] So, New York's regulations require [24:44] entities to first register with New [24:47] York, second, submit a plan explaining [24:50] how they will measure their emissions, [24:52] third, file a report every year, which [24:54] starts next June, [24:56] fourth, keep all the records. And then [24:58] the largest businesses have to pay an [25:00] outside auditor approved by New York to [25:03] double-check their numbers. [25:05] If they get it wrong, all these [25:07] companies face fines, possible criminal [25:09] charges, and New York inspectors just [25:12] showing up at their business without a [25:13] warrant. [25:15] Now, New York is requiring this in order [25:17] to set it set the price it plans to [25:20] charge for greenhouse gas emissions. [25:22] So, the Center for Individual Rights has [25:24] teamed up with the state of Iowa and the [25:26] state of Missouri and the American Free [25:29] Enterprise Chamber of Commerce to sue [25:32] and primarily challenging this [25:33] regulation as violating principles of [25:35] federalism. New York is essentially [25:38] reaching out to regulate businesses [25:39] beyond its borders. [25:41] But this case is also an example of how [25:43] it implicates the First Amendment. It's [25:46] one state trying to set a national [25:48] standard for what producers everywhere [25:51] must say about their products. [25:53] So, of course the First Amendment [25:55] protects your right to speak. It also [25:57] protects your right not to be forced to [26:00] say what the government wants you to [26:01] say, as Ryan alluded to as well, the [26:04] compelled speech doctrine. But there's a [26:06] narrow exception. Uh the government is [26:08] allowed to make a business or [26:11] individuals, I suppose, disclose plain [26:13] undisputed facts about its own product, [26:17] um like the amount of salt or sugar in a [26:19] food product. And this came up in the [26:21] NIFLA context as well, but the original [26:23] case um the standard was announced in [26:26] Zauderer. So, very briefly, in Zauderer [26:29] versus Office of Disciplinary Counsel, [26:32] it was a 1985 case, you had an Ohio [26:34] lawyer that was advertising that clients [26:37] injured by the Dalkon Shield IUD would [26:41] owe, quote, no legal fees if they lost, [26:44] but it didn't mention that they could [26:46] still owe court costs. So, the state [26:48] disciplined him for false advertising [26:50] essentially, and the Supreme Court held [26:53] that the government may require [26:55] an advertiser to include, quote, purely [26:58] factual and uncontroversial information [27:02] about the terms of its services, so long [27:04] as the requirement is just reasonably [27:06] related to preventing consumer deception [27:10] and isn't unjustified or unduly [27:12] burdensome. [27:13] So, because compelling that kind of, um, [27:17] speech is less burdensome or burden [27:20] speech less than banning speech [27:22] outright, the court applies a lower [27:24] standard rather than strict scrutiny. [27:27] But here, New York's regulation is not [27:29] just requiring the disclosure of plain, [27:32] undisputed facts, like the amount of [27:34] salt or sugar in a food product. It [27:37] makes an Iowa ethanol plant stand up and [27:39] say, in effect, "These emissions are [27:42] mine." But the plant didn't actually [27:44] burn that fuel. A driver in Buffalo did. [27:47] And blaming the seller for what the [27:49] buyer does is New York's opinion about [27:52] who is responsible for climate change. [27:54] It's not a new neutral fact under [27:57] Zauderer, and New York is making the [27:59] ethanol plant say it under its own name. [28:01] So, it's compelled speech. In short, New [28:04] York is demanding a carbon confession it [28:07] doesn't even need. If New York wants [28:10] those emission numbers, it can ask New [28:12] York businesses that bring fuel into the [28:15] state. [28:16] And so, this is a pattern we see across, [28:18] you know, states government forcing [28:20] businesses to speak and demanding [28:23] information it cannot justify. But that [28:26] pattern is not limited to state [28:27] governments. The federal government has [28:29] done the same thing. The first example's [28:32] with the Corporate Transparency Act. And [28:34] there, the government has now admitted [28:36] it doesn't even need the information at [28:38] all. [28:40] So, for folks who might not be familiar, [28:42] the Corporate Transparency Act was [28:44] tucked into the 2021 Defense [28:47] authorization bill and it requires [28:49] roughly 32 million small corporations [28:53] and LLCs, including nonprofits and civic [28:56] organizations, [28:58] to file a report with FinCEN. That's the [29:00] Treasury's Financial Crimes Bureau. As [29:03] to give the name, birth date, home [29:06] address, and photo ID of every person [29:09] who owns or controls the company. [29:12] And remarkably, what triggers this [29:14] reporting obligation under the statute, [29:16] is not selling anything or shipping [29:19] anything or crossing any state lines. It [29:22] is simply filing the formation papers in [29:25] a state. [29:26] Um, the CTA does not regulate activity, [29:29] it regulates existence. You incorporate [29:32] and you owe this report. And you fail If [29:35] you fail to file, you face a $500 day in [29:39] fines and up to two years in federal [29:41] prison. [29:42] Now, remarkably, 23 categories of [29:45] entities, including large banks and [29:47] large companies, are exempt. And so, the [29:50] burden falls on the corner store and the [29:52] family dairy [29:53] or smaller businesses. [29:56] While the cases were pending uh cert [29:58] petitions last month, the government [30:00] issued a final rule eliminating the [30:03] reporting requirement for domestic [30:04] companies and argued that the cases are [30:07] effectively moot or at least not worth [30:10] the court's time to take it up on cert. [30:13] But, the act itself remains unchanged. [30:16] Um, and so does FinCEN's authority to [30:19] reinstitute reporting. The statutory [30:21] mandate also remains in force against [30:24] foreign companies. So, foreign companies [30:26] that still have a domestic um owner [30:29] uh or uh someone who controls the [30:32] company or a controlling share. And [30:34] [snorts] FinCEN itself holds the key to [30:36] make it enforceable in the future [30:38] against anyone else. [30:39] >> [snorts] [30:40] >> Um [30:41] CIR challenged this law as [30:43] unconstitutional because it's beyond the [30:45] reach of Congress's commerce power, but [30:47] also because it violates the First [30:49] Amendment. Um and it does that in two [30:51] ways. One is the compelled speech [30:53] aspect. The CTA does not tell a business [30:56] how to make its product or treat its [30:57] customers. The only thing it requires is [31:00] speech. It requires the owners to talk, [31:03] answer the government's questions on the [31:05] government's form, or face prison. [31:08] Um [31:09] And this is not just paperwork or speech [31:12] that's incidental to regulating conduct, [31:15] as in Rumsfeld versus Fair, which is the [31:17] military recruiters case. In Fair, the [31:20] law regulated what schools did. In other [31:23] words, giving recruiters access, and [31:25] then the emails announcing their visits [31:28] was incidental. Here, the speech is not [31:31] incidental to the regulation. The speech [31:33] is the regulation. If you subtract it, [31:36] there's nothing left. And also, the [31:39] narrow exception for commercial [31:40] disclosures doesn't help. There's no [31:42] product, there's no consumer, there's no [31:45] deception to cure. The CTL simply [31:48] compels statements about who you are, [31:50] not what you sell. [31:52] It also violates associational privacy, [31:54] which is uh getting back to Owen's [31:56] points about um in since NAACP versus [32:01] Alabama, the court has long recognized [32:03] that forcing people to hand the [32:05] government a list of their associates [32:07] can chill association. And for many [32:10] Americans, an LLC is how they associate. [32:13] Neighbors running a homeowners [32:14] association, friends launching a small [32:17] publication. In Americans for Prosperity [32:21] Foundation versus Bonta, the court [32:23] required these kind of compelled [32:25] disclosures to be narrowly tailored. A [32:27] dragnet blanket upfront disclosure [32:30] requirement for over 32 million entities [32:34] is the opposite of being narrowly [32:35] tailored. [32:37] And the Treasury's own final rule finds [32:40] that collecting this information [32:41] domestic companies would not serve the [32:44] public interest. So, just this last [32:46] Monday at the court's long conference, [32:48] the justices considered two cert [32:50] petitions [32:51] um challenging the Corporate [32:53] Transparency Act. Uh one is the National [32:56] Small Businesses United vs. Becerra out [32:58] of the 11th Circuit, which upheld the [33:01] Act in December. And the second is CIR's [33:04] case, Texas Top Cop Shop vs. Garland out [33:07] of the Fifth Circuit, where the District [33:09] Court had declared the Act [33:11] unconstitutional. [33:12] Um so, in that case, CIR represents a [33:15] floor employee store, the Texas Top Cop [33:18] Shop, a Wyoming dairy, the Libertarian [33:21] Party of Mississippi, and the NFIB. [33:24] So, we'll see, I guess uh on Monday, the [33:28] court's first Monday, what happens in [33:30] that case. [33:31] Um the CTA though is not an outlier. [33:34] Federal agencies have been testing the [33:36] limits of Zauderer's narrow exception [33:38] for years. [33:39] >> [snorts] [33:40] >> I think there's four examples that show [33:42] how far it has stretched and where the [33:44] line still is um providing some [33:47] protection. [33:48] Um so, first, how it stressed. Back in [33:50] 2014, in American Meat Institute vs. [33:54] USDA, the en banc DC Circuit upheld [33:58] mandatory country of origin labels on [34:01] meat. Uh and in doing so, it extended [34:03] Zauderer beyond just the deception [34:05] rationale to other governmental [34:07] interests. [34:09] But once you the compelled disclosure [34:11] doesn't need to cure deception, [34:13] then this consumer protection rationale [34:16] can justify almost any mandated message. [34:19] Uh second, the limits of of um the [34:23] Zauderer exception. [34:25] Um [34:26] the 2010 Dodd-Frank Act directed the SEC [34:29] to make companies say which products had [34:32] not been found conflict-free in minerals [34:36] that were facing armed groups in the [34:37] Congo. [34:38] In National Association of Manufacturers [34:40] versus SEC, the DC Circuit struck down [34:44] that label in 2015, finding it was not [34:47] purely factual and it's not [34:49] uncontroversial. It's forcing a company [34:52] to confess blood on its hands, very much [34:55] the forced carbon confessions, I guess, [34:57] in the New York case. [34:59] Third, the line between facts the [35:01] government may force you to state and [35:03] messages it may not is shifting. [35:06] So, look at the tobacco context. In [35:09] 2012, in RJ Reynolds versus FDA, the DC [35:12] Circuit struck down the FDA's first [35:15] graphic cigarette warnings. One of those [35:17] included a cadaver with its chest [35:20] stitched shut. [35:21] Uh the court said those images are not [35:23] purely factual. They're designed to [35:25] provoke an emotional reaction. It's not [35:28] to inform. So, they fell outside sides [35:30] outer. So, the FDA tried again in 2020 [35:33] with 11 new graphic warnings covering [35:36] the top half of the front and back of [35:38] every packet of cigarettes. [35:40] In [snorts] 2024, the Fifth Circuit [35:42] upheld these uh regulations, these [35:45] labels, reasoning that uncontroversial [35:48] means factually accurate. So, an image [35:51] can still be disturbing and still count [35:53] as a fact. The Supreme Court declined [35:56] review. So, the same message went from [35:58] forbidden in the DC Circuit to [36:00] permitted. And on the Fifth Circuit's [36:03] reading, the government can compel [36:04] almost any message it can call accurate, [36:07] no matter how graphic or one-sided. [36:10] Right now, the warnings are still [36:12] blocked, however, but not because of the [36:13] First Amendment. Last month, the Fifth [36:16] Circuit held that the FDA [36:18] um likely exceeded its authority under [36:20] the statute cuz Congress had only [36:23] written [36:24] nine specific warnings into the statute. [36:27] the FDA went beyond that. [36:29] Um lastly, where does this line still [36:31] hold? Um in American Hospital [36:34] Association versus Azar, the DC Circuit [36:37] upheld a rule requiring hospitals to [36:39] publish negotiated rates because prices [36:42] were just plain facts about service. So, [36:45] facts about your own product are one [36:47] thing, but a government's contested [36:49] narrative in the speaker's mouth is [36:51] quite another. [36:53] There's a couple of recent developments [36:54] I'll highlight. [36:56] Um so, just on September 16th, [36:59] uh the SEC proposed rescinding a rule [37:02] that forces public companies to print [37:04] shareholder proposals often on ESG or [37:08] environmental, social, and governance, [37:10] or other political topics in the [37:12] company's proxy materials. The SEC [37:14] [snorts] [37:16] uh reasoned stated reason for this uh [37:18] reversal is lack of statutory authority. [37:21] It didn't mention the First Amendment, [37:23] but hopefully that's somewhere lurking [37:25] in the background because it is a prime [37:27] example of a compelled hosting of [37:29] someone else's message. Um [37:32] there's also a Nasdaq board diversity [37:35] rule that was approved by the SEC in [37:37] 2021, which requires listed companies to [37:40] disclose directors' race, gender, and [37:43] sexual orientation, or explain publicly [37:46] why they lack diverse directors. [37:48] In December 2024, the en banc Fifth [37:51] Circuit vacated the SEC's approval, but [37:54] again on other grounds, not First [37:56] Amendment. [37:57] And finally, there's a federal [37:59] contractor um DEI certification that was [38:03] passed in um Executive Order 14173. [38:08] Um [snorts] grantees and contractors [38:10] must certify that they do not run [38:13] illegal DEI programs, and a federal [38:15] judge in Illinois enjoined the [38:17] certification requirement in Chicago [38:19] Women in Trade vs. Trump um on First [38:23] Amendment grounds back in April. I [38:25] believe the Seventh Circuit appeal is [38:26] still pending. [38:28] So, kind of the three takeaways from [38:30] these cases in the Zauderer context is [38:33] as Ryan mentioned, we have to look past [38:35] the label. [38:36] Whether the government calls it consumer [38:38] protection or transparency or climate [38:41] accounting, there's one question that [38:43] this turns on. Is it requiring a plain [38:46] fact about what you sell or is it [38:48] putting the government's message in your [38:50] mouth? [38:51] Second, Zauderer needs to be cabined and [38:54] go back in its box. It began with a [38:56] lawyer's ad that could mislead clients [38:58] about fees, but it's become a license to [39:01] compel almost anything the government [39:03] can call as accurate. And courts really [39:06] need to return it to its origins, purely [39:09] factual, uncontroversial information [39:12] about the speaker's own product to [39:14] prevent deception. [39:17] And with that, I'll [39:18] turn it over to [39:19] uh back to you. [39:21] >> Thank you for that uh [39:23] informative presentation. Uh last but [39:26] not least on our panel is my partner [39:28] Eric Jaffe, who is one of the country's [39:30] most experienced Supreme Court and [39:32] appellate advocates on First Amendment [39:34] questions, [39:35] uh including campaign finance and [39:37] corporate political speech. [39:39] Uh he's been involved in probably more [39:41] than 200 Supreme Court matters. He lost [39:44] count long long ago. [39:46] Uh and he's also worked on dozens of [39:48] certiorari petitions and party briefs on [39:50] merits and more than 60 amicus briefs. [39:54] Uh back in the day, he clerked for Judge [39:56] Douglas Ginsburg on the DC Circuit and [39:58] then for Justice Clarence Thomas, [40:00] after which he practiced for a time at [40:02] Williams & Connolly before building his [40:04] own national appellate practice, and [40:07] then I was fortunate to persuade him to [40:09] join forces with me in 2018. [40:12] Um and he's going to tell us a little [40:13] bit about the First Amendment issues [40:15] that are lurking in the Sun Corp and [40:17] other climate cases and I think he'll [40:20] say a word or two about the uh the Apple [40:22] case and uh general abuse of the [40:25] commercial speech doctrine, which I [40:27] guess has been a [40:28] a theme of this panel so far. Eric. [40:32] >> Thank you, Gene. Um you know, I think [40:34] looking over what everyone has said so [40:36] far, the the the theme that drives [40:38] through it is that states and the [40:40] federal government are getting very [40:41] creative in how they go after speech by [40:44] corporations and speech that they want [40:47] to characterize, often incorrectly, as [40:50] relating to commercial transactions or [40:52] proposing commercial transactions. And [40:54] so, what you've seen in the development [40:56] of the so-called commercial speech [40:57] doctrine is that regulations that once [41:01] were focused more directly on the actual [41:04] commercial aspects of communication, [41:06] things that were involved in contract [41:08] formation, for example, offers, [41:09] acceptances, the terms of a contract, [41:12] which obviously are communicated, uh has [41:15] suddenly become a doctrine that says [41:16] anything a corporation says is somehow [41:19] commercial speech because they have a [41:21] profit motive or they uh it could relate [41:23] to a commercial transaction or people [41:25] might care about who they're buying [41:27] from. And of course, that is a wildly [41:29] abusive uh expansion of an exception to [41:33] the First Amendment that, if it should [41:35] exist at all, should be narrowly cabined [41:38] to sort of the more operative actions [41:41] that happen through speech. Uh some good [41:43] examples of this can be seen in these [41:45] cases up at the Supreme Court right now. [41:47] So, uh in the SunCorp case, [41:50] which at the Supreme Court is about [41:51] federal preemption, what is lurking [41:53] behind that is the nature of the claims [41:56] being discussed. So, the claims there [41:58] originally started out as punish [42:00] companies, oil companies, related [42:02] companies for selling things like fossil [42:05] fuels and has now become an attack on [42:07] what they have said about fossil fuels. [42:10] And it doesn't matter the context in [42:12] which they said these things. It is not [42:14] like they went to a consumer or a [42:16] distributor and said, "My gas is 95 [42:19] octane." And they were lying about it, [42:21] i.e. something that pertained to the [42:23] character of what you are actually [42:25] purchasing. No, what they said were [42:27] things like, "Well, we're not really [42:28] sure what the full impact of climate [42:30] change would be. We're not sure about [42:31] the competing factors. We're not sure [42:33] about the pros and cons of trying to ban [42:35] fossil fuels." They said these things [42:38] to it to the public. They said these [42:40] things to politicians. They said these [42:41] things on the floors of Congress. Uh [42:43] they said things like, "Maybe the Kyoto [42:45] Protocol is not a great idea." And [42:47] current climate suits, including [42:50] both the ones underlying Suncor and ones [42:51] in other places like Minnesota, um [42:55] they have tried to say that language, [42:58] those [42:59] straight-up [43:01] activities of petitioning the [43:02] government, of speaking about issues of [43:04] public importance, somehow fall within [43:06] the consumer protection laws because [43:09] they mislead consumers, not in their [43:11] purchases, but in their voting, in what [43:13] they say to their congressmen, and how [43:15] they associate. And that is just [43:17] remarkable, uh truly remarkable. It is [43:19] like saying The New York Times, because [43:21] it makes money off of magazines, somehow [43:24] is now subject to a lower standard of [43:26] scrutiny, or The Wall Street Journal, or [43:28] Real Clear Politics, or whoever you [43:30] happen to read. [43:31] Um the second thing that is interesting [43:33] about these climate litigation suits, [43:34] both in Suncor and elsewhere, is that [43:38] because they're characterized as [43:40] commercial speech, and courts, at least [43:42] initially, are thinking of of them in [43:44] terms of commercial speech, all the [43:46] processes of discovery are now [43:49] functionally being abused to [43:51] do an end run around protections, [43:54] protections on things like associational [43:56] privacy, like communicative privacy, [43:58] like talking to your congressman, which [44:00] is petitioning activity. They're [44:02] actually subpoenaing every [44:03] communication, every person you've [44:05] spoken to, every person you've [44:06] associated with, every person you've [44:08] donated to. [44:09] And as we can see in other contexts, [44:12] donor disclosure is a problem. We would [44:14] never allow that to happen in the NAACP. [44:17] In fact, we didn't allow it to happen [44:18] relative to NAACP, but they're trying to [44:20] end run that here. And if that were true [44:22] for [44:24] corporations that talk about oil and gas [44:26] or climate change, it should be true of [44:28] the NAACP, which itself is a [44:29] corporation. [44:31] As is the ACLU and as is almost every [44:33] other major nonprofit. Uh the second [44:35] thing that's sort of interesting is that [44:37] because it is happening in litigation, [44:39] the abuses are much harder to check. [44:42] When you get a discovery ruling that [44:44] says you must turn over all your [44:46] documents to the state of Minnesota or [44:48] to a private party or the city of [44:49] Boulder, uh it is very hard to appeal [44:52] those because they're interlocutory [44:54] orders. But the problem, of course, is [44:56] that once you've disclosed all the [44:57] things that you're protected on keeping [44:59] private, your associations and your [45:01] communications, uh it's hard to undo, [45:03] unring that bell. Um so, you're seeing [45:06] new challenges in the litigation context [45:09] with plaintiffs and states using the [45:11] courts to end run the First Amendment. [45:13] Uh the other instance uh up at the court [45:16] is this Apple versus Epic case, [45:18] which I think is a good example of [45:20] confusion about the nature of commercial [45:23] speech and what it in fact really in [45:25] fact relates to. So, in that case, the [45:28] court ordered Apple to include [45:32] on its checkout page for its App Store [45:35] links and communication and calls to [45:37] action by competitors saying, "No, no, [45:39] no, buy from me, don't buy from Apple." [45:42] Basically like saying, you know, Safeway [45:44] had to include the ads for Giant Foods [45:47] or whatever your shopping uh centers are [45:49] in your hometown. Um and compelled them [45:52] to speak out and promote what what are [45:55] effectively their commercial [45:56] competitors. Now, here it seems like [45:59] this is commercial speech, but of [46:00] course, it is not speech related to [46:02] Apple's transaction. It is speech [46:04] promoting somebody's competing [46:06] transaction, very much like in the NIFLA [46:08] case. And that type of compelled speech [46:11] is not something to make your [46:13] transaction more truthful. It is [46:15] something that imposes a vision and a a [46:18] marketplace of of communication that the [46:20] government would prefer to have. And [46:22] it's a very insidious expansion of what [46:26] is considered commercial speech that can [46:28] and can't be regulated. Again, an [46:29] example of the commercial character [46:32] being stretched in a way that distorts [46:34] what the First Amendment principles are. [46:37] Um so, I would say in that case, there [46:39] is a very interesting First Amendment [46:40] compelled speech case. In the Suncor [46:43] case, it is not literally the federal [46:46] preemption issue, but it is certainly [46:47] should be lurking in the background [46:49] because, of course, like any [46:50] constitutional avoidance situation, if [46:53] they go the other way on preemption, [46:55] then the the the the First Amendment [46:57] issues are going to be very painful and [46:59] have to be decided in a difficult way, [47:01] rather than simply avoided because you [47:03] can come to that conclusion on other [47:05] grounds. Um what I would say is, most [47:07] fascinatingly, now that uh Justice [47:08] Scalia, I'm sorry, Justice Alito has [47:10] recused himself, who knows where the 4-4 [47:13] issue goes. The federal preemption is a [47:15] close call on the preemption questions. [47:17] The doctrinal aspects of that and the [47:19] different makeups of the court on that [47:21] are very difficult to predict. And one [47:23] wonders whether some of these First [47:25] Amendment thumbs on the scale might, in [47:27] fact, find a little more consensus among [47:30] both left and right, you know, so-called [47:32] left and right justices, who who both [47:34] care about free speech in their own ways [47:36] and might ultimately come to a a similar [47:38] conclusion, as we saw uh in in a variety [47:42] of speech compulsion cases where Justice [47:43] Kagan joins with the conservatives to [47:45] protect free speech. So, with that, I [47:47] will pause and we can maybe discuss some [47:50] things further. Uh what I would say is [47:52] the big theme here is that just because [47:55] people [47:56] have a personal interest or even even a [47:58] monetary interest in speech, uh and just [48:00] because they happen to be selling [48:01] products doesn't somehow reduce their [48:04] ability to engage in political debate [48:07] and discussion that's important to the [48:08] polity. And in speech that may be [48:11] incidental to a transaction, but is not [48:14] in fact part of the transaction in the [48:16] same way that say an offer and an [48:18] acceptance would be. And I think that's [48:20] what litigators should take away when [48:22] they confront these new, varied, and [48:24] creative challenges to commercial speech [48:26] that seek to undermine the First [48:28] Amendment. [48:31] >> Thank you, Eric. Um [48:33] uh let me ask [48:34] all of our panelists uh kind of building [48:36] on Eric's discussion of the Suncor case, [48:39] uh [48:40] how do the rest of you predict the [48:42] Suncor case will come out, and how do [48:44] you think it should come out? [48:48] >> I can jump in there first. I guess with [48:51] full disclosure, the CIR filed an amicus [48:53] brief on behalf of the petitioners in [48:55] that case. [48:56] I do think it's going to be one where [48:58] the court's going to punt on the issue [49:00] the the merits issues, and it's going to [49:01] be resolved on jurisdiction. Uh this [49:04] case has been up before the Supreme [49:06] Court, I think, twice, and then uh gone [49:08] back on procedural grounds, and there's [49:10] not a final ruling here. The the case [49:14] hasn't even gone to trial, so I think [49:16] because there's not a final ruling, and [49:18] the court specifically, I think, asked [49:19] sua sponte for the parties to brief [49:21] jurisdiction, so [49:23] >> [snorts] [49:23] >> I think it's the big case that the [49:25] energy industry has been waiting for [49:27] over a decade that they will not get an [49:29] answer on. [49:31] >> Okay. [49:32] Uh anybody else want to weigh in on that [49:34] case, or should we uh should we move on [49:35] to the Apple case? I'd be interested in [49:37] everybody's views of what will happen [49:39] and what should happen there. [49:45] >> Go for it, Gene. [49:46] >> Well, [49:47] >> Yeah, you want to go ahead? Go ahead. Go [49:48] ahead, Owen. [49:49] >> I I going to say I I I I [49:52] on the Apple case [49:54] uh I [49:55] concerned that the court will not want [49:58] to get into the weeds of remedies for [50:01] miscellaneous commercial transactions [50:03] and might be blinded to the speech [50:06] aspects by the sort of seemingly [50:08] straight-up sales aspects. I think that [50:10] would be a mistake. I hope that is not [50:12] the case. Um we've you know, as Gene [50:15] knows [50:16] we have a brief before the Supreme Court [50:18] focusing on the First Amendment issues [50:20] and encouraging [50:22] the First Amendment issues to take front [50:23] and center. That's what protect the [50:25] first, which is organization Gene is [50:27] also involved in it president of this if [50:29] I remember correctly. [50:31] And so [50:33] hopefully [50:35] it won't happen, but I am a little [50:37] concerned that the advocates should [50:39] really emphasize those aspects and I [50:41] think they will. I think the advocates [50:42] are very good and will do exactly that. [50:44] Yeah. [50:45] >> I was going to say Gene, I think these [50:46] two cases are interesting examples of [50:48] how speech questions sort of lie sub [50:52] rosa to some of the more [50:54] procedural [50:55] questions that are being raised. I mean [50:57] one one case can be viewed as a [50:58] preemption case, the other is really [51:00] how and whether a contempt order for [51:02] violating an injunction was [51:04] appropriately issued. But underneath [51:06] both of them you have these these very [51:08] thorny and very important speech first [51:10] First Amendment and free speech [51:11] questions. Um which I think is [51:14] indicative of this entire area. Um [51:16] because often times you have the speech [51:18] questions buggled with other questions [51:20] and one thing I wanted to mention if I [51:22] may to follow up on something Eric said [51:24] about the use of really lawfare to [51:27] compel businesses, organizations, [51:29] commercial actors to speak words and to [51:32] communicate messages that the government [51:34] wants or to use lawfare to crack open [51:38] donor [51:39] disclosure. The First Choice case that [51:42] was decided by the US Supreme Court this [51:44] last term I think is somewhat overlooked [51:47] but relatively important in this space [51:48] because that involved an effort by the [51:50] Attorney General in New Jersey to compel [51:53] a pro-life pregnancy resource center to [51:55] turn over 10 years of donor records. And [51:58] that was done using pre-litigation [52:01] discovery that all attorneys general [52:03] have power to engage in under the [52:05] consumer protection statutes. And the [52:07] hook there was that these pregnancy [52:09] resource centers were deceiving the [52:10] public [52:11] by claiming to provide these pregnancy [52:14] resources without providing abortion at [52:16] the same time. [52:18] And the idea being that they needed to [52:19] investigate to ensure that donors were [52:21] apprised of this of this scandalous [52:23] behavior. And the US Supreme Court in [52:26] First Choice provided an avenue for [52:29] challenging these pre-litigation [52:32] discovery requests without exhausting [52:35] remedies at the state level, which many [52:37] of these attorneys general had relied [52:38] upon to go to skate by without any kind [52:41] of review for these clearly [52:43] speech-directed [52:45] discovery instruments. And so I think [52:47] it's it's it's very interesting because [52:49] that that builds upon what all the [52:52] panelists have been saying, which is in [52:53] these spaces oftentimes what's at issue [52:56] is the government is trying to force or [52:58] compel a business to communicate a [53:01] message the government wants them to [53:03] come to communicate. Whether that be [53:04] about climate change, whether that be [53:07] about you know, you have it, safety of [53:10] products, that has a clear political [53:12] valence and an ideological valence as [53:14] well outside of the sounder or standards [53:16] as Arpona said. [53:17] But it's very important for us to [53:19] continue to find ways to challenge these [53:21] kinds of efforts [53:22] and get them into court and the First [53:24] Choice case gives us that kind of hook. [53:27] >> Thank you for that. Anybody else Any of [53:29] our other panelists want to offer a a [53:31] view on how the Apple case [53:33] will come out or should come out? And [53:35] that you know, that [53:36] uh the uh [53:38] the injunction at issue in that case was [53:40] was essentially a regulation of speech. [53:43] Right? [53:44] And [53:45] And And as I recall the facts, the the [53:47] judge decided that Apple could be [53:50] sanctioned [53:51] not not for violating the terms of the [53:54] order, but for violating the spirit of [53:56] the order. That is, not being able to [53:57] get inside the judge's mind and predict [54:00] how he would want to order [54:04] what he would want Apple to do if [54:06] another if a related issue were [54:08] presented to it. Um but but all having [54:10] to do with how Apple organizes its App [54:13] Store, which for Apple is speech, right? [54:15] It's cover It's commercial speech. So, [54:16] anybody want to offer a view on that? [54:19] >> Well, I I'll just add that I think that [54:21] case uh is significant beyond just free [54:25] speech and the Apple uh you know, [54:27] consumer kind of or it's a commercial [54:29] speech or aspect for the First Amendment [54:31] issues because [54:33] what you just identified, Gene, is that [54:35] disconnect between what an injunction [54:37] says and what the spirit of what it's [54:41] trying to say. And so, if the court does [54:43] get to address that issue, then that's [54:45] going to have implications far beyond [54:47] just [54:48] um App Stores or software things like [54:51] that. I mean, injunctions over school [54:53] districts, prison systems, police [54:55] departments, any kind of consent decree. [54:58] Um this happens in the election context. [54:59] So, it's going to have huge [55:01] ramifications about the scope of an [55:03] injunction and what it's meant to. [55:05] >> Well, we we know I'll put in a little [55:06] shameless uh [55:08] self-plug for my article on Cato Supreme [55:10] Court. So, if you want to know what I [55:12] think about the upcoming term, you can [55:14] check out that article. [55:15] >> Right. Yeah, I was going to say, we we [55:17] know that the spirit of aloha does not [55:19] overcome the Second Amendment. So, [55:21] hopefully the spirit of the injunction [55:23] does not overcome uh the First [55:24] Amendment. [55:26] >> That's right. [55:27] Uh let me suggest that we go now to a [55:29] question from one of our audience [55:31] members uh by the name of Jake P. [55:34] Uh who asked, "Is there a need to [55:36] reassess [55:38] um [55:39] tiers of scrutiny and how they apply uh [55:43] to the different forms of speech that [55:45] we've uh that we've discussed today? [55:48] Should there even be a lower level of [55:50] review or tier review of review for any [55:53] kind of commercial speech? [55:55] >> Well, you know, it's [55:57] I I will say that I am not as hostile to [56:00] tiers of scrutiny as some, though I [56:02] think they are much abused. Uh and that [56:05] I think the more sensible way of [56:07] thinking about commercial speech is sort [56:09] of in the draft card burning case, uh [56:11] O'Neal I think it was, or Brian, I'm [56:13] sorry, O'Brien, uh where you need to [56:15] tease out the conduct components and the [56:17] speech components. And the speech [56:19] components should really get full [56:21] protection while allowing, obviously, uh [56:24] the regulation of contract formation uh [56:26] and things like that, but not allowing [56:28] these communicative [56:30] uh political [56:32] separate things. Those should get full [56:34] protection. And, you know, the conduct [56:36] bit should get a differential treatment. [56:38] But I wouldn't allow this loosey-goosey [56:40] intermediate, heightened, lowered, maybe [56:43] this, maybe that kind of scrutiny. [56:44] That's That goes a step too far. [56:47] >> And I would jump in a little bit there [56:49] in at least as far as political speech [56:50] is concerned, it would be nice to have [56:52] the courts actually enforcing the [56:54] existing tiers of scrutiny. [56:56] Um we have some cases right now that [57:00] combine sort of the comments from Ryan [57:01] and Arpana that [57:03] that um the states are mandating [57:06] messages from speakers [57:09] and and that they're being creative in [57:11] the kinds of things that they want to to [57:14] require, like requiring you that you [57:16] include the registered agent on the face [57:19] of your communication, the person that [57:21] you sue. [57:22] Or requiring that you include your top [57:26] donors, top three donors, or top five [57:28] donors. And sometimes even that you [57:30] include the top donors to your top [57:32] donors to the point at which the your [57:34] communication gets swallowed by these [57:37] mandated messages. [57:40] And the courts here [57:42] aren't really enforcing scrutiny. I [57:44] mean, in political speech we have higher [57:46] tiers of scrutiny, but what we find a [57:48] lot of times is that the courts will [57:50] say, "Oh, this is just disclosure." [57:53] which the courts has already resolved. [57:56] Has no resemblance whatsoever to the [57:58] disclosure that the Supreme Court in the [58:00] past has resolved. But by saying this is [58:03] disclosure, so we're not going to apply [58:05] scrutiny to this. Or, you know what? [58:08] This is a lesser restricted This is a [58:11] lesser restrictive [58:13] requirement than this other thing. So, [58:15] we're not going to do any scrutiny [58:17] whatsoever. [58:18] These are issues that we're having at [58:20] least in the political area. [58:23] >> Thank you. Any other observations on [58:25] tiers of scrutiny? [58:27] >> I'll just say the the court [58:29] has a rule against creating new [58:31] categories of unprotected speech, but [58:33] it's never created a rule against [58:35] propagating new tiers of scrutiny. And I [58:38] think part of the frustration, I mean, [58:39] certainly with tiers of scrutiny is that [58:42] you seems like they're created [58:43] willy-nilly all the time. And then the [58:45] clarity of what particular type of [58:47] speech or non-speech fits within which [58:49] particular type of tier of scrutiny is [58:51] is always unclear. So, I think some [58:53] clean up, some clarity, and some a [58:55] faithful and rigorous application of [58:57] these tiers in ways that are clear and [59:00] that are predictable would be very [59:01] helpful. [59:04] >> Those of us who have who have watched [59:06] the Supreme Court for a long time are [59:07] aware that the Chief Justice, for [59:09] example, has has long been pretty [59:11] hostile to [59:13] multiple tiers of of scrutiny and uh [59:16] and and so perhaps in one of these cases [59:19] that's pending or both of them, he'll [59:21] he'll be able to make some headway in [59:22] rationalizing tiers of scrutiny and [59:25] perhaps consolidating or eliminating [59:28] some or at least uh uh [59:30] uh at least avoiding the effect that [59:32] they tend to have of providing less [59:34] protection for certain kinds of uh [59:37] speech that's disfavored in some [59:39] circles. [59:41] Well, I think we have reached the end of [59:43] our of our hour. [59:45] Um [59:46] but I'm happy to keep going if uh [59:49] if our Fed FedSoc hosts want us to keep [59:51] going. [60:01] >> Hearing no objection or [60:03] >> [laughter] [60:04] >> I suppose if there's time for one or two [60:06] more questions. You know, I think it's [60:07] interesting the tiers of scrutiny as it [60:09] relates to commercial speech is that [60:11] they're much like in the [60:13] Second Amendment context where [60:15] intermediate scrutiny allowed drifting [60:18] and injection of individual opinions [60:20] about what's important what's not [60:21] important. So too in the commercial [60:23] speech context the lack of clarity has [60:26] has allowed courts to to do this. And so [60:28] it at a minimum more clarity in the in [60:31] the in the requirements even of [60:33] intermediate scrutiny would be much [60:34] welcomed. [60:36] Yep. [60:40] >> Well, do we have [60:41] >> Roger, are we [60:42] >> Do we Do we have time for one more [60:43] question from an audience member? [60:45] >> Uh I was given no guidance [60:47] [clears throat] on that so I'll say yes. [60:49] >> Okay. Well, [60:51] uh let's uh let's go to this uh this [60:54] additional question uh where an [60:56] anonymous attendee says, "I've seen [60:58] clashes between some of the speech [61:00] interests discussed today and the [61:02] government speech doctrine." Which is a [61:04] very good point, I think. Any thoughts [61:06] Any thoughts on how the two doctrines [61:08] intersect and how such cases should be [61:12] resolved? [61:14] >> Well, this is my personal hobbyhorse. Uh [61:17] so whoever asked that question, thank [61:18] you. Um [61:20] I would say that we have heard a lot [61:22] about government compelled speech where [61:25] they force people to to support [61:27] messages, to to endorse messages, to [61:29] send out messages. And I think the [61:31] analog to that, which you see in lots of [61:32] cases, including the union cases, is [61:34] government compelled [61:36] financial support for a third-party [61:38] speech. And I personally think having [61:41] government take your tax dollars to [61:42] support a viewpoint [61:45] set of speech, propaganda in my world, [61:47] uh is the same thing. It's problematic [61:50] and it's why we have statutes against [61:52] government using tax funds for [61:54] propaganda, but I think actually the [61:56] First Amendment probably has a built-in [61:58] prohibition cuz it's it violates my [62:00] freedom not to support your message. [62:03] Even if I have to support you building [62:04] the road, I don't have to support you [62:06] lobbying to get other people to want to [62:08] agree with you. So, that's my view on [62:10] government speech. I think it's [62:11] perfectly consistent with our [62:13] anti-compelled speech discussion that we [62:15] had earlier. [62:17] >> And it doesn't directly uh cite the [62:19] >> Go ahead. [62:20] >> Go ahead. [62:21] >> Okay, well, I I was just going to say [62:22] there are a lot of times I wish that the [62:24] government would speak instead of [62:25] demanding that my clients say it. Uh we [62:28] we say this is a less restrictive [62:30] alternative. Rather than mandating this [62:31] message from us, why don't you say it? [62:34] Uh [62:34] >> Yeah. [62:36] >> Yeah, that was the reasoning in NIFLA of [62:38] course. I mean, the court the court said [62:39] one of the lesser restrictive ways the [62:41] government could have handled that [62:42] problem would have been simply to advise [62:44] California women of availability of [62:46] other alternative services. And so, the [62:48] court did look to government speech in [62:50] that case as an a lesser a less [62:52] restrictive alternative. [62:53] >> Yeah. Right, that's what I that's what I [62:54] was going to mention exactly. But, I [62:56] think as with other exceptions to [63:00] uh free speech, it's a case where [63:02] sometimes the exception goes too far and [63:04] kind of swallows the rule. So, the [63:06] courts have to be very careful about [63:07] keeping the starch in the standards, if [63:10] you will, about what is protected speech [63:12] and what's unprotected. And so, [63:14] government speech is supposed to be a [63:16] shield for the government's own [63:18] expression, but too often it's used as a [63:20] sword to conscript others to speak like [63:22] I would mentioned. [63:24] >> [snorts] [63:25] >> Well, and and in a world that is not the [63:29] world that Eric would prefer, but in a [63:31] world where the government has the [63:32] ability to take our tax dollars and say [63:35] whatever it wants with them, it becomes [63:38] even more important to protect the free [63:41] speech rights of other actors, [63:43] corporations, [63:45] other other organizations as well as [63:47] individuals. [63:48] So that so that all of us can at least [63:50] respond when the government engages in [63:53] speech that's contrary to what we [63:55] perceive as our own interest, right? [63:58] Um [64:00] Well, with that, shall we shall we [64:02] adjourn, Andrew? [64:05] >> Yes, sure. So I want to thank all our [64:07] panelists for sharing your expertise and [64:09] opinions on this issue and thank you, [64:11] Gene, for moderating. If our audience is [64:14] interested in learning more about all of [64:15] Federalist Society's programming, please [64:17] visit their website at fedsoc.org. [64:20] And with that, we're adjourned.
