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With the social media companies was not coercive. We have promoted responsible actions to protect public health, safety and security when confronted by challenges like a deadly pandemic and foreign attacks on our elections and we have consistently made clear that we believe social media companies have a critical responsibility to take account of the effects of their platforms that they have American on the people while making independent decisions about the content of their of their platforms. Joining me is Professor Eric Goldman of the Santa Clara University School of Law. He's also a co -director of the High Tech Law Institute. Eric, what was the main issue in the Fifth Circuit case? The basic question is, when were conversations that were taking place between the government and social media services becoming so coercive so or directed that the social media services were doing the bidding and removing content of their direction? Did the Fifth Circuit find that there were actual threats made to social media companies? It did, but the threats are always a little bit vague. It's not always as easy as, you must do X or we will throw you in jail. The threats are often more indirect and that's one of the many challenges from this opinion. It wasn't entirely clear to me exactly which threats mattered or when they even became threats. And what did the injunction specifically prohibit Biden administration officials from doing? The actual implementation of the injunction is no more clear than before the opinion. What the court said is that certain branches to the government, specifically, they called out the White House and the FBI must comply with the rules articulated in the court. But the court didn't provide concrete boundaries around those rules and simply said, you must comply with the Constitution. So, in a sense, I don't know how the executive branches are going to implement what the court's ordering them to do because it's saying comply with the Constitution. But obviously, the people who made those decisions in the first place weren't clear what was constitutional and what wasn't and they don't know they're any clearer now. It also says they can't significantly encourage platforms to remove lawful content. So what does significantly encourage mean? Exactly. That's the point. The significant encouragement is the boundary around the constitutional protections. In other words, if they're significantly encouraging the removal of constitutional content, that's not constitutional. That's a violation of the First Amendment. However, what constitutes a significant encouragement is not made clear by the opinion. They do point to a few examples, but I don't think I would know how to actually interpret that language. And so what's likely to happen is if that this opinion stands, the regulated entities are going to become far less conversational with the social media services. They're not going to take a chance about violating the rule. So the court standard actually clears out a lot of permissive behavior today because the boundary is so clear, people are going to err on the side of being cautious. Well, that's what the Republicans who brought this case want, isn't it? The Missouri AG Andrew Bailey said that the ruling was another brick in the wall of separation between tech and state. No doubt many people wish that the government would not be in conversations with social media services. And yet, the court's opinion really casts a shadow over dialogues that take place every day, all the throughout our entire country, between governments and private entities, social not just media services. This concern about significant encouragement or coercion comes up across the board in lots of spaces. And the court standard puts potentially many or all of those those in play, opens up the door for lots of people to challenge government conversations that are just in the public health and safety interest. Government's just trying to do its job to protect its citizens. And now this court casts a doubt on the legitimacy of those efforts. The Biden administration had said that it pushing was social media companies to just adhere to their own rules about content. Did you see a First Amendment violation here? There's no doubt that some Individual employees of the government pushed the frontiers perhaps to or over the limit. That's just the nature of individual government employees so zealously trying to do their job. They might get a little bit excited. Having said that, I think that overall, of none the social media services appreciate the feedback from the government. They want to hear from the government because the government sees things that they don't or is a good neutral source of assessing risks in the community that need to be addressed. It's helpful for the social media services to hear from the government the risk that the government is assessing, what might be done to address those risks. That's actually helpful and that informs the social media services own independent editorial discretion. So, the line between that kind of activity and the overzealous pushing by some government employees is really thin and we want fewer of the overzealous stuff, but we definitely want the other stuff to continue and that's the part that I don't think the government employees are going to know they are on that spectrum. I thought it was interesting that Dr. Anthony Fauci, who came such criticism from conservatives during COVID, you know, the Fifth Circuit said no, he did okay, he was fine. Yeah, I think the Fifth Circuit was trying not to engage in partisan politics. Fauci was the target of conservative ire and so they weren't pandering that to ire and yet the entire structure of the opinion really does validate a lot of the conservative objectives in a way that I think fundamentally undermines public health and safety. So it's kind of like what do we really want from the government? And I don't know that I share the Fifth Circuit's vision of what it wants from the government. I always point out that the Fifth Circuit is considered the most conservative appellate court in the country and we've seen these judges make rulings that were outliers before and it's getting reversed by the Supreme Court more than it used to. Well the good news is that this critical opinion fixed an even worse district court opinion that was a true outlier and even that opinion was too much for the Fifth Circuit. They could not stand behind this opinion that had just gone rogue on the of rule law. So in that sense the Fifth Circuit opinion is definitely better than the district court opinion that preceded it yet and I don't know what would happen if the Fifth Circuit opinion is appealed to the Supreme Court. The Biden Administration told the Supreme Court it's going to ask the court to take the case on appeal. And in the meantime Justice Samuel Alito granted the government's request for a temporary stay. Does the Justice Department have a good argument for the court to take this case? The opinion, although it narrowed the injunction quite a bit, it still leaves a core injunction against key executive branch agencies restricting their ability to do their job and leaving such ambiguity about how they can do their job that it seems like they need the Supreme Court of the government more guidance. It wouldn't surprise me if the states, or the plaintiffs in this case, also appeal the ruling because they want to pick up the stuff they had gotten in the district court that the Fifth Circuit took away. it's So entirely possible both sides will be encouraging the Supreme Court to take this case. And we'll know more by next Friday when those stay ends. Thanks, Eric. That's Professor Eric Goldman of the Santa Clara University School of Law. Coming up next, Justice Alito refuses to recuse. I'm June listening to Bloomberg. Missed your favorite Bloomberg Radio show? Bloomberg Businessweek, Masters in Business, Bloomberg Intelligence, and more are also available as podcasts. Listen today on Apple, Spotify, and anywhere else you get your podcasts. I'm Emily Chang, and on my new show, The Circuit. I speak with the big names in tech, culture, and innovation and ask, what's next? You'll hear from leading tech CEOs and investors alongside influencers and celebrity entrepreneurs. This is a chance to go deeper, to meet people in their world and find out what drives them. Watch The Circuit Thursday nights from Bloomberg Originals. You can catch 10 it at p .m. Eastern on Bloomberg TV and on the Bloomberg app and Bloomberg .com. And download The Circuit companion podcast wherever you get your podcasts. The Bloomberg Talks podcast. Today's top interviews from around Bloomberg News. An exclusive interview with the chair of the SEC, Gary Gensler. Kathy Wood, the founder of ARK Invest. Thanks for joining us. Wide ranging conversations with Fortune 500 Egan, CEO, big name investors and business leaders around the world. Back with us is Enon Krize, chairman and CEO of

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