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Can Trump serve third term? Yale Law prof sees ‘possible loophole’ to 22nd Amendment ban

homesafetytechpros — Fri, 18 Apr 2025 23:57:02 +0000

Constitutional Law

Can Trump serve third term? Yale Law prof sees ‘possible loophole’ to 22nd Amendment ban

April 3, 2025, 3:01 pm CDT

Can President Donald Trump serve a third term? The 22nd Amendment appears to prevent it. “No person shall be elected to the office of the president more than twice,” it reads. But could a president serve a third term if he isn’t “elected” to the office? (Image from Shutterstock)

The use of the word “elected,” rather than “serve,” is “an unfortunate drafting error,” in the view of Michael C. Dorf, a professor at Cornell Law School, who spoke with the Washington Post.

The Wall Street Journal (gift link via How Appealing), the Washington Post and the New York Times have coverage of the constitutional questions.

The issue is getting attention since Trump told NBC News that “there are methods” by which he could serve a third term, and he wasn’t joking.

NBC News asked Trump about a scenario in which Vice President JD Vance would run for president and then hand the office of president to Trump.

“That’s one” method, Trump responded.

But Trump could not be Vance’s vice president, according to many experts who spoke with the Wall Street Journal and the New York Times. That’s because of the 12th Amendment, which says, “No person constitutionally ineligible to the office of president shall be eligible to that of vice president of the United States.”

Because Trump wouldn’t be eligible to be president, he wouldn’t be eligible to be vice president under the 12th Amendment, said Akhil Reed Amar, a constitutional law professor at Yale Law School.

Taking a contrary view are the authors of an article in the Minnesota Law Review written when former President Bill Clinton was president. The article argues that the 12th Amendment might not bar a two-term president from the vice presidency because “it is by no means clear that the term ‘eligibility’ as used in the 12th Amendment refers to or incorporates a person’s reeligibility under the 22nd Amendment” that followed.

The 12th Amendment eligibility provision was likely referring to constitutional requirements for the presidency based on citizenship, residency and age, according to the article co-authored by Bruce G. Peabody, a government and politics professor at Fairleigh Dickinson University. The ambiguities might allow a vice presidential run by a two-term president, he told the Wall Street Journal.

There is another possible scenario. What if Vance is elected president, he appoints Trump as the secretary of state, Vance and his vice president resign, and others in the line of succession before the secretary of state step aside?

That could work if Congress changes the federal presidential succession law to eliminate the ban on cabinet officials becoming president if they are ineligible for the job, according to Amar.

“There is a possible loophole. I wish it weren’t true, but there is,” Amar told the Wall Street Journal.

But some experts said there should be no debate on the issue.

The history of the 22nd Amendment’s drafting and ratification “make clear beyond doubt it was written that way to guard against the danger that anyone could use the office to assert long-term tyrannical control in the United States,” said Deborah Pearlstein, a professor at Princeton University, in an email to the Washington Post.

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BLM seeks camp host for Mule Mountain Long Term Visitor Area

homesafetytechpros — Wed, 27 Nov 2024 17:31:43 +0000

PALMS SPRINGS, Calif. — The Bureau of Land Management (BLM) is looking for a volunteer to serve as a campground host at Coon Hollow campground in Mule Mountain Long Term Visitor Area (LTVA).

Located in eastern Riverside County, the campground is nestled in the lower Colorado Desert adjacent to desert riparian wash habitat. As a camp host, you’ll play a vital role enhancing visitor experiences, while enjoying a remote camping location. This is a fantastic opportunity for those who enjoy the outdoors and interacting with people.

Volunteers will assist the BLM by making visitor contacts, restocking restrooms, recording LTVA permits and reporting incidents, among other tasks.

The area is known for its unique geology and offers ample opportunities for recreation. The historic Bradshaw Trail National Scenic Byway provides four-wheel access to a variety of hiking trails and historic mining areas.

Camp hosts must carry in all supplies, including drinking water, as well as provide their own self-contained trailer or camper. Services are located thirty miles northeast in Blythe. Camp hosts will receive a stipend of $10 for each day worked and the LTVA permit fee of $180 will be waived.

Volunteer hours are flexible, with preferred working hours between 7 a.m. and 5 p.m. and on weekends. The camp host is not expected to work during this entire period.

Applicants must be at least 21 years of age. For those interested in the volunteer opportunity, please contact the Palm Springs – South Coast Field Office, 760-833-7100, or email Noel Mollinedo at nmollinedo@blm.gov or Caroline Gish at cgish@blm.gov.

Get more information or directions to the campground by visiting the website online. Learn more about other campgrounds in the area at blm.gov/visit.

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Will the Supreme Court have a role in the presidential election as it enters a new term?

homesafetytechpros — Tue, 08 Oct 2024 17:32:15 +0000

U.S. Supreme Court

As the justices return to the bench on Oct. 7 for the new term, the unknowable question is whether the U.S. Supreme Court will play a role in the outcome of the November 2024 presidential election. Will this year be like 2000, when a close election was effectively decided by the court’s ruling in Bush v. Gore? Or will it be like 2020, when a close election did not raise any issues for the justices to decide?

Before the court adjourned for the summer, it had granted review in 28 cases, which is likely slightly less than half of its docket. It will grant review in more cases when it returns from its recess and continue to take cases until mid-January that will be decided this term.

What are some of the more high-profile cases already on the docket?

A ban on gender-affirming care?

United States v. Skrmetti involves a Tennessee law that prohibits gender-affirming care for transgender minors. In 2023, Tennessee passed Senate Bill 1, which prohibits health care provided for: “(A) Enabling a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex; or (B) Treating purported discomfort or distress from a discordance between the minor’s sex and asserted identity.”

Three transgender teenagers, all receiving gender-affirming care, filed a lawsuit seeking to enjoin enforcement of SB 1. The Biden administration joined the lawsuit on behalf of the plaintiffs.

The district court issued a ruling that prevented implementation of SB 1 until litigation had concluded, finding that “parents have a fundamental right to direct the medical care of their children, which naturally includes the right of parents to request certain medical treatments on behalf of their children.” Additionally, the district court found discrimination on the basis of gender identity and that the plaintiffs were likely to prevail on their equal protection claims.

The U.S. Court of Appeals for the 6th Circuit simultaneously evaluated Tennessee and Kentucky laws prohibiting gender-affirming care for transgender minors. It reversed the preliminary injunctions from the lower courts, upholding the laws. The court cited studies from the late 1970s and early 1980s that recommended only adults undergo hormonal and surgical treatments for “gender dysphoria” (the terminology used throughout the case). The court urged deference to the political process.

The Supreme Court granted review on the question of whether the Tennessee law violates equal protection. The case will matter for transgender youth in the United States. A study concluded: “As of August 2024, 39.4% or 118,300 trans youth aged 13-17 are living in the 26 states that have passed bans on gender-affirming care.” This case will also likely see the Supreme Court address the level of scrutiny that will apply to discrimination against transgender individuals and whether they are to be treated as a “suspect class.” It is a case that once more puts the Supreme Court squarely in the middle of the “culture wars.”

Age verification for sexually explicit websites

Free Speech Coalition v. Paxton involves a Texas law that regulates websites that have more “more than one-third of which is sexual material harmful to minors.” Such websites must “verify that an individual attempting to access the [covered] material is 18 years of age or older.” The act permits verification by “digital identification,” “government-issued identification” or “a commercially reasonable method that relies on public or private transactional data.” These websites also must have a series of warnings about the harms of exposure to pornography.

A federal district court issued a preliminary injunction against the statute, concluding that it was likely unconstitutional. The U.S. Court of Appeals for the 5th Circuit ruled that the age verification requirement was likely constitutional, but it agreed with the lower court that the disclosure requirements should continue to be enjoined as violating the First Amendment. The Fifth Circuit, in a 2-1 decision, said that only rational basis review—whether the law is rationally related to a legitimate government purpose— is to be used in evaluating the age verification requirement and found it to be constitutional.

On the one hand, in Ginsberg v. New York (1968), the court upheld a law that prohibited the sale of sexually explicit magazines to those under 18. On the other hand, the court never has upheld a law that applies to both adults and minors. On many occasions, the court has held the that a burden on adults’ access to that content “can stand only if it satisfies strict scrutiny,” Ashcroft v. ACLU (2004); Ashcroft v. Free Speech Coalition (2002). Also, in Brown v. Entertainment Merchants Association (2011), the court used strict scrutiny to declare unconstitutional a California law that prevented minors under 18 from renting or buying violent video games without parental consent.

As states are increasingly trying to regulate the internet, including with laws like that in Texas, this case takes on great importance.

The death penalty

Glossip v. Oklahoma poses the issue of whether a state can execute a person when its attorneys concede that a new trial is appropriate. In 2004, Richard Glossip was convicted of first-degree murder by a jury in Oklahoma County District Court. When Glossip was originally convicted and sentenced, the state relied on its “indispensable witness,” Justin Sneed. It has now become clear, however, that Sneed likely murdered the victim.

Indeed, the state of Oklahoma confessed error, admitting that the failure to disclose the truth about Sneed’s psychiatric condition, leaving the jury with Sneed’s uncorrected false testimony and then suppressing this information for a quarter century, rendered “Glossip’s trial unfair and unreliable.” But the Oklahoma Court of Criminal Appeals has refused to stop the execution. The U.S. Supreme Court granted review of several questions, including “[w]hether the state’s suppression of the key prosecution witness’s admission he was under the care of a psychiatrist and failure to correct that witness’s false testimony about that care and related diagnosis violate the due process of law.” Also, the court granted review on “whether due process of law requires reversal, where a capital conviction is so infected with errors that the State no longer seeks to defend it.” In addition, the parties were directed to brief “whether the Oklahoma Court of Criminal Appeals’ holding that the Oklahoma Post-Conviction Procedure Act precluded post-conviction relief is an adequate and independent state-law ground for the judgment.”

This is likely to be an important case for precedent regarding the death penalty. Will the Supreme Court allow a likely innocent person to be sentenced to death, even when the state now agrees that man should not be executed? What is the legal effect of the state of Oklahoma confessing error? The case also poses important issues about the government’s duties for disclosure and when a state law ground is an independent and adequate state law ground of decision.

Exhaustion of state court remedies

If I were to pick a potential sleeper case for the term, it would be Williams v. Washington, which poses the question of “[w]hether exhaustion of state administrative remedies is required to bring claims under 42 U.S.C. § 1983 in state court.”

The Supreme Court has consistently held that there is not an exhaustion requirement before bringing Section 1983 claims, which allows individuals to sue state or local governments for constitutional rights violations. In 1982, in Patsy v. Board of Regents of State of Florida, the court concluded that “exhaustion of state administrative remedies should not be required as a prerequisite to bringing an action pursuant to Section 1983.” More recently, in 2019, in Knick v. Township of Scott, Pennsylvania, the court held that there is no need to exhaust state administrative or judicial remedies before bringing a takings claim under Section 1983.

Williams v. Washington arose when Nancy Williams sued under Section 1983 in Alabama state court, complaining about delays in the processing of unemployment benefits. The Alabama Supreme Court affirmed the trial court’s dismissal of the case, holding that the Alabama “legislature has prohibited courts from exercising jurisdiction over the plaintiffs’ claims at this stage” before the claimants had exhausted their administrative remedies.

If the Supreme Court were to affirm the Alabama Supreme Court, it would be a dramatic change in what the law has been for over a half century and radically change how civil rights cases are litigated. Conceivably, the court could distinguish many of the prior cases by saying exhaustion is not required before a federal court suit under Section 1983, but it is for a state court suit under Section 1983. But since the court’s reasoning has been that an exhaustion requirement is inconsistent with Section 1983, it does not seem that the forum should matter.

Conclusion

It always is difficult at the beginning of a Supreme Court term to forecast what will be the blockbuster cases in June. It is especially so in this election year. But it is safe to predict that it will be another term with decisions that have enormous impact on our society and on people’s lives.

Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s also the author of many books, including No Democracy Lasts Forever: How the Constitution Threatens the United States and the forthcoming A Court Divided: October Term 2023 (October 2024).

This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.

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Saving American democracy will require constitutional reforms and Supreme Court term limits

homesafetytechpros — Sat, 21 Sep 2024 22:09:28 +0000

U.S. Supreme Court

There is a widespread sense that American democracy is in danger. No form of government lasts forever, and it is foolhardy to believe that the United States cannot fall prey to the forces that have ended democracies in many other countries. The problems, to a large extent, stem from the choices made long ago in drafting the Constitution. But the situation has gotten much worse in recent years, in part because of decisions by the U.S. Supreme Court.

I discuss this threat to democracy and ideas for constitutional reforms in my new book, No Democracy Lasts Forever: How the Constitution Threatens the United States, from which this column has drawn.

Confidence in the institutions of American government is at an all-time low. The Pew Research Center has been tracking public trust in government since 1958. It has gone from a high of 77% in 1964 to our contemporary 20%. In a poll in September 2023, only 4% of those surveyed said that the American political system “works well.” Especially individuals in their 20s and 30s are losing faith in democracy. A Brookings Institution study found that “29% of … young Americans say that democracy is not always preferable to other political forms.” Both Congress and the Supreme Court have unprecedented low levels of approval. At the same time, the country is more deeply polarized than it has been since Reconstruction. Few have the sense that the government can deal effectively with crucial issues, such as climate change or income inequality.

Although the causes of the threats to American democracy are complex, many of the problems can be traced back to aspects of the Constitution which are increasingly haunting us. The framers of the Constitution, out a distrust for democracy, wanted elites to choose the president and created the Electoral College. Never in the 20th century did the loser of the popular vote become president because of the Electoral College. But population shifts and partisan realignment have made this a regular occurrence in this century. It happened in 2000 and 2016, and it almost happened in 2004 and 2020. In the last election, if just 42,921 votes had changed in Arizona, Georgia and Wisconsin, Donald Trump would have been reelected president, despite losing the popular election by almost 7 million votes.

To secure approval and ratification of the Constitution, the framers agreed on a compromise where each state would have two senators. When the Constitution was written, the most populous state (Virginia) had 12 times more people than the least populous state (Delaware). According to the 2020 census, the most populous state (California) has 68 times more people than the least populous state (Wyoming). In the last session of Congress, the 50 Democratic senators represented 42 million more people than the 50 Republican senators.

Changes in the rules of the Senate in the 1970s have made filibusters much easier and legislation much more difficult. Now it takes 60 votes to pass any bill other than for the budget. The result is that a minority of senators representing a small fraction of the population can block any legislation. This plays a key role in why it is so difficult to enact federal legislation.

Supreme Court rulings have deflated democracy

And the Supreme Court has made the problems of democracy much worse. In Citizens United v. Federal Election Commission (2010), the court held that corporations can spend unlimited money from their corporate treasuries to get candidates elected or defeated. This has distorted our electoral system and bred cynicism.

In Shelby County v. Holder (2013), the high court declared unconstitutional a crucial provision of the Voting Rights Act of 1965 that required jurisdictions with a history of race discrimination in voting to get preapproval before significant changes in their election systems. This was a very effective mechanism to prevent discrimination in voting. After it was struck down, some states, such as Texas and North Carolina, immediately implemented voting restrictions that had previously been denied approval.

In Rucho v. Common Cause (2019), the Supreme Court said that federal courts cannot hear challenges to partisan gerrymandering. The House of Representatives was intended to be the one body created by the Constitution that was representative of the people. But partisan gerrymandering—where the political party that controls the legislature draws election districts—has become vastly more effective because of sophisticated computer programs and voter data. For example, in Pennsylvania, over several elections, the congressional elections in districts drawn by the Republican legislature resulted in Democrats receiving between 45 percent and 51 percent of the statewide vote, yet only winning 5 of 18 House seats.

All of this combines to create a serious threat to democracy. And these threats will remain regardless of who is elected president in November 2024.

But although the problems are grave, I believe that the situation is not hopeless. It is both possible and essential to cure the defects and save American democracy. There are many meaningful changes that can be done without constitutional amendments. The Senate can change its rules to eliminate the filibuster. Congress, by legislation, can end partisan gerrymandering for seats in the House of Representatives and the Supreme Court can end partisan gerrymandering altogether. The size of the House of Representatives can be increased to make it more democratic. New legislation can be passed to protect voting rights.

Constitutional amendments won’t come easy

Amending the Constitution is enormously difficult, but it’s not impossible. Virtually every flaw in the document can be fixed by constitutional amendment if there is the will to do so. Although amendments have been rare in recent decades, there have been times in American history when they have been more common.

As an example, I believe that a constitutional amendment to impose term limits on Supreme Court justices is possible. When the Constitution was written, average life expectancy was 36 years. From 1787 until 1970, the average tenure of a Supreme Court justice was 15 years. For those appointed since 1970 who have left the bench, the average tenure has been 26 years. Many of the current justices are likely to serve more than 30 years. That is too much power in one person’s hands for too long a period of time.

But I believe that term limits for Supreme Court justices, and certainly ones that would apply to the current justices, would require a constitutional amendment. It always has been understood that a Supreme Court justice has the position for life, unless the justice resigns or is impeached and removed. That is what Article III, Section 1 says: “The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour.”

There are some theories to the contrary. One is that Congress, by statute, could keep them as “justices” in the sense that they would retain their title and salary and could sit on courts of appeals and fill in when a justice is recused. But then they are not functioning as a justice in the way it always has been understood. They are a Supreme Court justice in name only.

A constitutional amendment to impose term limits is plausible because it has had bipartisan support. In the 2016 Republican presidential primaries, three candidates—Ben Carson, Rick Perry, and Mike Huckabee—supported term limits for justices. In opinion polls, a significant majority of the American people favor this.

There also is an alternative to a spate of separate amendments: After 200 years, it is time to begin thinking of drafting a new Constitution to create a more effective, more democratic government. It does not take much reflection to see the absurdity of using a document written for a small, poor and relatively inconsequential nation in the late 18th century to govern a large country of immense wealth in the technological world of the 21st century.

It may seem strange and frightening to suggest thinking of a new Constitution at a time of great partisan division. But that existed in 1787; the Constitution was just barely ratified in many of the states. The hope would be that those involved in the process would again rise to the occasion and in any event, their product would still need to be ratified.

I do not minimize the difficulty of significant change in any of these ways. But we must face the frightening reality of the country’s future if there are not major reforms. My hope is that looking at that abyss will be the impetus for beginning to realize the need for action and start the long-term process of making it happen.

Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s also the author of many books, including the forthcoming No Democracy Lasts Forever: How the Constitution Threatens the United States (August 2024) and A Court Divided: October Term 2023 (October 2024).

This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.

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New Supreme Court Fellows Begin Term

homesafetytechpros — Thu, 12 Sep 2024 04:35:17 +0000

Main content

The 2024-2025 Supreme Court Fellows, clockwise from top left, Joshua D. Blecher-Cohen, Elizabeth C. Adler, Samantha C. Smith, and Hope Forsyth. Images are from the collection of the Supreme Court of the United States.

Four new U.S. Supreme Court Fellows are set to begin their 2024-2025 fellowships in September.

Hope Forsyth joins the program from the U.S. District Courts for the Northern, Eastern, and Western Districts of Oklahoma, where she clerked for Judge John F. Heil, III. She is assigned to the Administrative Office of the U.S. Courts, an agency within the judicial branch that provides a broad range of management and administrative support to the federal courts.

Joshua D. Blecher-Cohen is assigned to the Supreme Court’s Office of the Counselor to the Chief Justice. He has served as a law clerk for Judge Marsha S. Berzon, of the U.S. Court of Appeals for the Ninth Circuit, and as a law clerk for Judge Myron H. Thompson, of the U.S. District Court for the Middle District of Alabama.

Samantha C. Smith joins the program from the U.S. District Court for the Middle District of Tennessee, where she clerked for Judge Eli J. Richardson. She is assigned to the Federal Judicial Center, which is the education and research agency for the federal courts.

Elizabeth C. Adler joins the program from the U.S. Court of Appeals for the Sixth Circuit, where she clerked for Judge Eric L. Clay. She is assigned to the U.S. Sentencing Commission, which establishes sentencing policies and practices for the federal courts.

The Supreme Court Fellows Program, established by the late Chief Justice Warren E. Burger in 1973, provides participants the opportunity to gain a greater understanding of the federal Judiciary. Fellows work alongside top officials in the judicial branch on projects that further the goals of the Judiciary.

In the words of Chief Justice John G. Roberts, Jr., the program offers “a unique opportunity for exceptional individuals to contribute to the administration of justice at the national level.”

The fellows are selected by a commission composed of nine members selected by the Chief Justice. Additional background information on each of the 2024-2025 Supreme Court Fellows and the program’s history is available online.

Related Topics: United States Supreme Court

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Supreme Court will hear some of its biggest cases of the term this month

homesafetytechpros — Fri, 02 Feb 2024 13:28:52 +0000

U.S. Supreme Court

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.

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