Chemerinsky: Supreme Court will hear some of its biggest cases of the term this month
Erwin Chemerinsky. (Photo by Jim Block)
Some of the most important cases of the term will be argued this month before the U.S. Supreme Court. On Feb. 8, the justices will return to the bench earlier than planned to hear Trump v. Anderson, which considers whether former President Donald Trump is disqualified from again being president because of Section 3 of the 14th Amendment. On Feb. 26, the court will hear two cases that could have a profound effect on the internet and social media, Moody v. NetChoice and NetChoice v. Paxton.
Trump v. Anderson
Section 3 of the 14th Amendment provides: “No person shall be a senator or representative in Congress, or elector of president and vice-president, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”
In December, the Colorado Supreme Court, in a 4-3 decision, ruled that Trump was ineligible to be listed on the presidential primary ballot in that state by virtue of Section 3 of the 14th Amendment.
There are several legal issues before the Supreme Court. First, should the court adjudicate cases under Section 3 of the 14th Amendment or deem them “political questions”? The court has held that cases are nonjusticiable political questions when there is a need for deference to the choices of other elected officials.
(Disclosure: I am one of several law professors who have filed a First Amendment scholars amicus brief in Trump v. Anderson.)
The political question doctrine provides that the federal courts may not adjudicate a matter; it does not bar state courts from doing so. For example, the court held that challenges to partisan gerrymandering are nonjusticiable political questions in federal court, but it has been explicit that state courts can hear such a matter. If the court were to dismiss Trump v. Anderson on this basis, it would mean that the issue would be left to each state to decide.
Second, does Section 3 of the 14th Amendment require congressional legislation in order to be enforced? In 1869, Chief Justice Salmon Chase, writing as a lower court judge, in Griffin’s Case, said Section 3 was not self-executing. Chief Justice Chase wrote, “Legislation by Congress is necessary to give effect to the prohibition” in Section 3.
But it is unclear why legislation would be needed. In fact, in the 1883 Civil Rights Cases, the Supreme Court said the 14th Amendment “is undoubtedly self-executing without any ancillary legislation, so far as its terms are applicable to any existing state of circumstances.” Section 3 allows Congress to remove the bar from holding office but does not require congressional action to enforce it.
Third, does Section 3 apply to the president? Section 3 lists many positions where there is a disqualification, but it does not specifically mention the president. The trial court in Colorado ruled in favor of Trump on this ground. But the Colorado Supreme Court reversed this conclusion and said: “It seems most likely that the presidency is not specifically included because it is so evidently an ‘office.’ In fact, no specific office is listed in Section 3; instead, the section refers to ‘any office, civil or military.’ True, senators, representatives and presidential electors are listed, but none of these positions is considered an ‘office’ in the Constitution. Instead, senators and representatives are referred to as ‘members’ of their respective bodies.” Both sides present arguments from the text and the history of the 14th Amendment as to whether the president is to be considered an officer of the United States.
Fourth, did Trump engage in “insurrection or rebellion”? There are many aspects to this question. Does there need to be a criminal conviction? Nothing in the language of the 14th Amendment requires this, but might the Supreme Court impose such a requirement? What, if anything, is the relevance of the House of Representatives having impeached Trump for his behavior relative to Jan. 6 but the Senate not having convicted him? Does it matter that Trump’s behavior involved speech, and was it expression protected by the First Amendment? What is the definition of “insurrection,” and how is it to be determined if it is met here?
It certainly would be unprecedented for the Supreme Court to disqualify a leading candidate for the president of the United States. But Trump’s actions were unprecedented. It is hard to imagine a Supreme Court case in which the stakes could be higher for our political system and our society.
Moody v. NetChoice and NetChoice v. Paxton
The internet and social media are the most important developments for freedom of speech since the invention of the printing press. The Supreme Court’s decisions in Moody v. NetChoice and NetChoice v. Paxton could have a profound effect on these crucial media.
Florida and Texas adopted laws that prohibit social media platforms from engaging in content moderation and that require them to provide an individual explanation of each decision to remove material. The Florida statute, S.B. 7072, applies to platforms with annual gross revenues of greater than $100 million or more than 100 million monthly users. It prohibits “willfully deplatform[ing] a candidate for office.” Also, a platform is prohibited to “censor, deplatform or shadow ban a journalistic enterprise based on the content of its publication or broadcast” unless that content is obscene. The law requires an individual explanation as to decisions to remove content.
Texas’s law, H.B. 20, is similar. It flatly prohibits “social media platforms” from “censor[ing]” a “user’s expression, or a user’s ability to receive the expression of another person,” on the basis of viewpoint or geographical location. This prohibition applies even if the viewpoint is not expressed on the social media platform; that is, platforms cannot remove users or their posts on the basis of things said elsewhere.
The 11th U.S Court of Appeals declared the Florida law unconstitutional. It stressed that social media platforms, like all other private media companies, have the First Amendment right to choose what to publish. By contrast, the 5th U.S. Court of Appeals upheld the Texas law, emphasizing that internet and social media companies should be regarded as “common carriers” and thus subject to regulation to prevent them from excluding speech.
Social media companies do an enormous amount of content moderation. For example, from October to December 2021, Facebook says it took action against terrorism content 7.7 million times; bullying and harassment 8.2 million times; and child sexual exploitation material 19.8 million times. In the last quarter of 2020, Facebook took action on an average of 1.1 million pieces of content per day.
What would the internet and social media be like without this content moderation? Is it realistic to require an individual explanation every time a social media platform decides to remove material given the huge amount of content moderation that occurs?
Underlying these cases is the question of whether it makes sense to allow states to regulate the internet and social media. An increasing number of states are adopting laws controlling these media in various ways. But does state regulation make sense for such a national and indeed international media?
It is not hyperbole to say that these are the most important cases to come to the Supreme Court about the internet and social media, and they will determine their nature for years to come.
Erwin Chemerinsky is dean of the University of California at Berkeley School of Law and author of the newly published book A Momentous Year in the Supreme Court. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s also the author of The Case Against the Supreme Court; The Religion Clauses: The Case for Separating Church and State, written with Howard Gillman; and Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights.
This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.