Social Speech and the Supreme Court

The Cyberlaw Podcast

The Supreme Court is getting a heavy serving of first amendment social media cases. Gus Hurwitz covers two that made the news last week. In the first, Justice Barrett spoke for a unanimous court in spelling out the very factbound rules that determine when a public official may use a platform’s tools to suppress critics posting on his or her social media page. Gus and I agree that this might mean a lot of litigation, unless public officials wise up and simply follow the Court’s broad hint: If you don’t want your page to be treated as official, simply say up top that it isn’t official.

The second social media case making news was being argued as we recorded. Murthy v. Missouri appealed a broad injunction against the US government pressuring social media companies to take down posts the government disagrees with. The Court was plainly struggling with a host of justiciability issues and a factual record that the government challenged vigorously. If the Court reaches the merits, it will likely address the question of when encouraging the suppression of particular speech slides into coerced censorship.

Gus and Jeffrey Atik review the week’s biggest news – the House has passed a bill to force the divestment of TikTok, despite the outcry of millions of influencers. Whether the Senate will be quick to follow suit is deeply uncertain.

Melanie Teplinsky covers the news that data about Americans’ driving habits is increasingly being sent to insurance companies to help them adjust their rates.

Melanie also describes the FCC’s new Cyber Trust Mark for IOT devices. Like the Commission, our commentators think this is a good idea.

Gus takes us back to more contest territory: What should be done about the use of technology to generate fake pictures, especially nude fake pictures. We also touch on a UK debate about a snippet of audio that many believe is a fake meant to embarrass a British Labour politician.

Gus tells us the latest news from the SVR’s compromise of a Microsoft network. This leads us to a meditation on the unintended consequences of the SEC’s new cyber incident reporting requirements.

Jeffrey explains the bitter conflict over app store sales between Apple and Epic games.

Melanie outlines a possible solution to the lack of cybersecurity standards (not to mention a lack of cybersecurity) in water systems. It’s interesting but it’s too early to judge its chances of being adopted.

Melanie also tells us why JetBrains and Rapid7 have been fighting over “silent patching.”

Finally, Gus and I dig into Meta’s high-stakes fight with the FTC, and the rough reception it got from a DC district court.