FedSoc Forums

This panel addressed the textual questions of §230: is the statute correctly understood to permit discretionary content moderation on the part of social media platforms and other supporting tech entities, or does the text provide for a more limited range of moderation policies? Although several circuit courts have adopted a more expansive interpretation of the statutory protections, Justice Thomas has recently questioned whether the prevailing application is consistent with the text. Does viewpoint discrimination fall within the scope of §230 protection? Are decisions to ban individuals from participating on a platform covered by the statutory protections? To what extent does the statute preclude state regulatory initiatives to protect speech by platform users?
Featuring:

Philip A. Hamburger, Maurice and Hilda Friedman Professor of Law, Columbia Law School; President, New Civil Liberties Alliance
Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law, UCLA School of Law
Mary Anne Franks, Professor of Law and Dean's Distinguished Scholar, University of Miami School of Law
Moderator: Hon. Gregory G. Katsas, Judge, United States Court of Appeals, District of Columbia Circuit

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

On June 15, 2021, The Federalist Society's Telecommunications & Electronic Media Practice Group sponsored a teleforum to discuss "Closing the Digital Divide: The Future of Broadband Access."

The COVID-19 pandemic has brought a renewed attention to closing the country’s digital divide. In response, Congress and the White House have made broadband infrastructure a top priority, with several different infrastructure proposals on the table. This massive investment to connect all Americans will require significant funding. This event, featuring FCC Commissioner Brendan Carr, will explore the different options available, potential roadblocks, and the continued importance of unleashing private sector investment in today’s broadband networks.

Featuring:
-- Hon. Brendan Carr, Commissioner, Federal Communications Commission
-- Moderator: Randolph J. May, President, Free State Foundation

Section 230 has been understood to shield internet platforms from liability for content posted by users, and also to protect the platforms’ discretion in removing “objectionable” content.
But policy makers have recently taken a stronger interest in attempting to influence tech companies’ moderation policies. Some have argued the policies are too restrictive and unduly limit the scope of legitimate public debate in what has become something of a high-tech public square. Other policy makers have argued the platforms need to more aggressively target “hate speech,” online harassment, and other forms of objectionable content. And against that background, states are adopting and considering legislation to limit the scope of permissible content moderation to preclude viewpoint discrimination.
Some have suggested that the §230 protection, in combination with political pressure, create First Amendment state action problems for content moderation. Others argue that state efforts to protect the expressive interests of social media users would raise First Amendment concerns, by effectively compelling speech by social media and tech platforms.
What are the First Amendment limits on federal and state efforts to influence platform decisions on excluding or moderating content?
Featuring:

Eugene T. Volokh, Gary T. Schwartz Distinguished Professor of Law, UCLA School of Law
Jed Rubenfeld, formerly Assistant United States Attorney, U.S. Representative at the Council of Europe, and professor at the Yale Law School
Mary Anne Franks, Professor of Law and Dean's Distinguished Scholar, University of Miami School of Law
Moderator: Hon. Gregory G. Katsas, Judge, United States Court of Appeals, District of Columbia Circuit

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

On May 27, 2021, the Sixth Circuit issued a decision in Vitolo v. Guzman. Over a dissent written by Judge Donald, the Court held that the Small Business Act of the American Rescue Plan Act created unconstitutional racial, ethnic, and gender-based priority preferences in distributing covid-relief grants to small businesses. Upon finding the plaintiffs would win on their constitutional claim, the Court granted the plaintiffs a preliminary injunction pending appeal.

Joining us to discuss is Mr. Daniel Lennington, the attorney who represented Mr. Vitolo before the Sixth Circuit.

Featuring:
-- Daniel Lennington, Deputy Counsel, Wisconsin Institute for Law and Liberty

On June 3, 2021, the U.S. Supreme Court decided Van Buren v. United States. Writing for the 6-3 majority, Justice Barrett explained that an individual exceeds authorized access when he accesses a computer with authorization but obtains information in a place on the computer off-limits to him. Justice Thomas filed a dissenting opinion, in which Chief Justice Roberts and Justice Alito joined.
Former Assistant U.S. Attorney for New York's Southern District Joseph DeMarco joins us to discuss the ruling and its implications.
Featuring:

Joseph DeMarco, Partner, DeMarco Law PLLC

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

This teleforum will examine the president's use of travel bans during the SARS-2 pandemic Two of the nation's top experts in immigration law--Professor Ilya Somin of the Antonin Scalia Law School at George Mason University and Chris Hajec of the Immigration Reform Law Institute--will present their views of the law and policy in this area while also taking questions from the audience.

Featuring:
-- Christopher Hajec, Director of Litigation, Immigration Reform Law Institute
-- Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University

In a 9-0 opinion written by Justice Breyer that could have far-reaching implications, the Supreme Court held in United States v. Cooley that a tribal police officer does have authority to temporarily detain a non-Indian where the officer has probable cause of a violation of state or federal law. Justice Alito filed a concurring opinion.

Joining us to discuss are Indian Law experts AJ Ferate and Jennifer Weddle.
Featuring:
Anthony J. "A.J." Ferate, Of Counsel, Spencer Fane LLP
Jennifer Weddle, Shareholder, GreenbergTraurig
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To register, click the link above.

On May 27, the Supreme Court issued its 9-0 decision in San Antonio, TX v. Hotels.com holding that district courts lack the discretion to deny or reduce Federal Rule of Appellate Procedure 39 appellate costs. The judgment of the Court of Appeals for the Fifth Circuit is affirmed.

Joining us to discuss is Associate Professor of Law and Interim Dean Charles Campbell of Faulkner University Jones School of Law.

Featuring:
-- Charles Campbell, Associate Dean for Academic Affairs and Associate Professor of Law, Faulkner University, Jones School of Law

Few fields are more in need of fresh thinking than administrative law. The author of Administrative Law Theory and Fundamentals: An Integrated Approach, a new casebook recently published by Foundation Press, seeks to provide such thinking. The new casebook proposes a theory of administrative power that better explains constitutional text and structure, as well as historical and modern practice, than competing accounts. It argues that there are “exclusive” powers that only Congress, the President, and the courts can respectively exercise, but also “nonexclusive” powers that can be exercised by more than one branch. This theory of “nonexclusive powers” allows students and scholars of administrative law to make more sense of—or better critiques of—administrative concepts such as delegation, quasi-powers, judicial deference, agency adjudications, the chameleon-like quality of government power, and of the separation of powers more broadly. Please join Professor Ilan Wurman, the casebook’s author, and Professor Richard Epstein, for a discussion of this new casebook and its theory of administrative power.

Featuring:
-- Ilan Wurman, Author, Associate Professor, Sandra Day O'Connor College of Law, Arizona State University
-- Richard A. Epstein, Laurence A. Tisch Professor of Law and Director, Classical Liberal Institute, New York University School of Law

First proposed in 1923 – yes, nearly one hundred years ago - the Equal Rights Amendment was finally passed by the U.S. Congress nearly 50 years later, in 1972, with a seven-year deadline for its ratification. With the deadline approaching, but the requisite 38 states not having voted to ratify, Congress approved, and President Carter signed, a three-year extension, to 1982.
Several states and the U.S. Congress are now revisiting the ERA, raising a variety of issues:

Whether it is constitutionally possible at this point to extend or eliminate the deadline for ratification of the 1972 ERA; the effectiveness (or not) of five states’ revocations of their votes to ratify; the effectiveness (or not) of the three states’ ratifications that came more than 35 years after the extended deadline;
The pros and cons and wisdom (or not) and necessity (or not) and ramifications of amending the United States Constitution with the ERA.

These and related matters will be discussed by Rep. Steven Andersson, founder of GOP4ERA.org, and Jennifer Braceras, Director of the Independent Women’s Law Center. Hon. Eileen J. O'Connor will moderate the discussion.
Featuring:

Rep. Steven Andersson, Founder, GOP4ERA.org
Jennifer Braceras, Director, Independent Women's Law Center
Moderator: Hon. Eileen J. O'Connor, Law Office of Eileen J. O'Connor, PLLC

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.