The Supreme Court’s Internet problem | The Gray Area

0:00 I guess that the hinge factor here is uh who leaves the court

0:04 [music]

0:04 and who gets thrown onto the court, right?

0:05 I mean, I I guess that is that is just everything, right?

0:08 to any question that begins,

0:09 "Are you optimistic about the Supreme Court?" I'm going to give the same answer,

0:12 which is tell me who sits on it in 10 years.

0:15 Um you you know, if if Trump gets to replace a bunch

0:18 more justices or if we keep electing people like [music] Trump,

0:22 there is no set of circumstances where that ends well.

0:25 Period.

0:44 Ian Millhiser, welcome to the show.

0:46 It's good to be here.

0:47 Thank you so much.

0:48 Good to finally get you in.

0:50 Um just as a little bit of an introduction,

0:52 Ian is a senior correspondent here at Vox.

0:56 He's been covering the Supreme Court, the Constitution, um since 2019, I guess.

1:03 Basically, Ian is our resident lawyer covering the democracy is collapsing beat.

1:09 Ian is the author of a new piece about what

1:12 I think is a surprising pattern at the Supreme Court.

1:17 For all of its aggressiveness in a ton of areas,

1:20 some of which we will get into, the court

1:22 seems unusually cautious when it comes to regulating the internet.

1:27 So, given the stakes of the internet, I thought now would be a great time to get

1:31 you on the show to break it down for us.

1:34 How's that?

1:34 That sounds great.

1:35 All right, let's do it.

1:37 Um okay, so this court, clearly, even if you are not a lawyer,

1:41 even if this is not your beat, you are aware that this is a court

1:44 that is comfortable shaking things up when when they're,

1:48 you know, when they're feeling um the Holy Spirit, as it were.

1:51 But, they do seem unusually wary of doing too much damage to the internet.

1:56 Let's just start with a quote from Justice Kagan, which is in your piece.

1:59 She said, and now I'm quoting, "You know,

2:01 these are not like the nine greatest experts on the internet."

2:05 But, what do you think she really meant beyond the obvious there?

2:09 Yeah.

2:09 Well, let me contextualize the quote

2:12 and I guess this broader conversation because,

2:15 like you said, this is a court that rarely asks the question,

2:20 "Hey, do we, the nine justices act justices,

2:23 actually know what we're talking about here?" You know,

2:26 they often just do things.

2:29 We're in the middle of a period where the court

2:31 is being very aggressive in asserting its dominance over public schools.

2:37 Um you know, historically, outside of segregation,

2:41 the Supreme Court has stayed very, very far away from curriculums,

2:46 from the day-to-day management of school for the simple reason that, you know,

2:51 these are nine people with law degrees.

2:53 What the hell do they know about administering a public school system?

2:56 And we've had these two cases recently, um Mahmood and Mirabelle,

3:01 where the Supreme Court has been very aggressive in saying that the courts need

3:07 or the public schools need to be

3:11 very attuned to the desires of religious conservatives,

3:15 especially when those religious conservatives object to queer people,

3:19 queer themes in lessons, you know, books that even have gay characters in them.

3:25 Um the Supreme Court has a has probably made it impossible to teach

3:29 a book with with that has a gay a gay character in them.

3:32 And so, that's something that's very new.

3:34 The court has been tearing down independent agencies.

3:37 One of the court's major projects in the Trump

3:39 administration is we have all these agencies,

3:42 the FEC, the FCC, the Federal Trade Commission,

3:46 where the president is not allowed to fire the commissioners.

3:49 And the reason why is because Congress thought it was important that we

3:53 have some of these agencies be somewhat

3:56 insulated from the politics of the moment,

3:59 and the Supreme Court is tearing that institution down.

4:01 So, this is the least conservative court I have ever covered.

4:07 You might call them activist in several areas.

4:09 Right.

4:10 An activist court, yeah.

4:11 Yeah, you know, they are politically very far to the right,

4:14 but they don't want to conserve anything.

4:17 And in the context of this very aggressive court,

4:22 this court that overrules major precedents all the time,

4:26 they are just very, very timid about doing

4:30 anything that could change how the internet operates.

4:32 And you know, this in a moment where there's

4:35 a lot of public clamor for more regulation of the internet.

4:38 Their hands-off approach to the internet is very much out of step

4:43 with how they approach virtually every other issue that has come before them.

4:46 Let's just sort of start at the beginning, which is this recent case,

4:49 which let's just assume most people are not nerds

4:52 for this kind of thing and are not tracking individual cases.

4:55 And this is what you wrote about, right?

4:56 This is the Cox Communications versus Sony Music Entertainment case.

5:00 Just at its most basic level, what was this case about?

5:03 Yeah.

5:04 So, Cox is the most recent in a series

5:07 of cases where like various plaintiffs have come up with very

5:12 aggressive legal theories that would put that would put internet-based

5:18 companies into serious bind if the courts were to embrace them.

5:22 So, the facts of Cox was this was a suit

5:25 brought against internet service providers by it was Cox v.

5:29 Sony Music Entertainment by the music industry.

5:33 And essentially what they wanted to do is they wanted

5:36 the courts to say that if you are an internet service

5:39 provider and you know that one of your customers is

5:43 downloading is downloading illegal music and you don't cut them off,

5:49 then there are just tremendous financial consequences for this.

5:53 A jury ordered a billion-dollar jury verdict against

5:56 um this one internet service provider and in this.

6:00 Um and this is billion, billion with a B.

6:03 Okay.

6:04 Um because the internet service provider wasn't cutting

6:06 people off fast enough after they downloaded illegal music.

6:10 And the Supreme Court like didn't just reject that legal theory.

6:15 They they nuked it from orbit.

6:16 They said that only in very little limited circumstances,

6:19 you have to show that the service provider either intended for people

6:24 to pirate music using its system or that it marketed it.

6:27 So, you know, "Use our internet service and you

6:29 can download the new Taylor Swift album for free." Unless

6:31 unless the uh the internet service provider is running

6:34 ads like that, then they they they can't be sued.

6:39 And I I mean, I think that's the right outcome.

6:42 You know, I I I you know,

6:43 part of the reason why the court reached the decision it did is because

6:47 the method that the music industry was using

6:49 to track who was infringing was very imprecise.

6:53 Like they might determine that someone

6:55 in an entire college dorm or an entire Right.

6:58 or an entire office building was illegally downloading music.

7:02 But what they're asking for is for like

7:04 the whole hospital to lose its internet service.

7:07 And I think the Supreme Court was right to say that an entire hospital or entire

7:12 dorm building should not lose its internet access

7:15 because one person somewhere in that hospital is,

7:18 you know, has decided to illegally download a Sabrina Carpenter album.

7:22 But like this is you know,

7:25 it is part of a pattern which where this is the most recent

7:27 of several decisions where the court has

7:29 taken a very cautious approach to the internet.

7:32 And like I said, like this is a court

7:33 which normally does not show caution very often at all.

7:37 So, let's say the court ruled the other way here.

7:40 And didn't toss out the verdict against Cox, right?

7:43 You say that it would have severely

7:44 damaged many Americans access to the internet.

7:48 Like, how so?

7:48 Lay that out.

7:49 Like, what would the consequences have been if this went the other way?

7:52 So, the way that the music industry was tracking people's,

7:56 um, you know, who was illegally downloading,

7:59 they apparently had some software that could pinpoint,

8:03 um, using using an IP address.

8:06 Um, the problem is that IP addresses are pretty imprecise.

8:10 You know, that was the point that the Supreme

8:11 Court made in its opinion is that, you know,

8:14 you might have multiple users in the same dorm room,

8:16 the same hospital building, you know, you might have many,

8:19 many users in the same coffee shop who are all sharing an IP address.

8:24 And if the music industry had gotten its way,

8:27 what would have happened is if one person

8:30 using that IP address had illegally downloaded a song,

8:33 everyone else could potentially lose their access.

8:36 Cox lost this lawsuit at the trial level and at the appellate level.

8:40 Had to go up to the Supreme Court before the music industry lost.

8:44 You know, there's another case that the Supreme Court decided a few years ago.

8:47 This was the case where Kagan made that remarks

8:49 about how the justices aren't experts in the internet.

8:52 It's called Twitter v.

8:52 Taamneh.

8:53 The facts of this were the families of victims of an ice attack in Istanbul.

8:59 So, it was a mass murder event where ISIS, not ice,

9:02 ISIS, um, killed murdered a bunch of people in Istanbul.

9:07 And there is a federal law which says that if you aid and abet

9:12 or provide substantial or by for knowingly providing

9:15 substantial assistance to certain acts of international terrorism,

9:19 um, then you can be held liable for it.

9:23 And so, the argument was, well, Twitter, YouTube, Facebook,

9:27 all of these folks, they're letting I ISIS use their system.

9:30 ISIS post recruit um, post recruitment videos, you know,

9:34 they are helping ISIS be a more effective terrorist

9:38 organization by giving them a communications platform and therefore Twitter

9:42 and Facebook and YouTube and all these sites should be

9:44 liable for this terrorist attack that happened in Istanbul, Turkey.

9:49 And like again, the lower courts were fairly favorable to this argument.

9:53 If you read the statute the statute was a pretty plausible legal theory.

9:58 And the Supreme Court said, "No, no, no, no, no, no, no, no, no, no, no, no.

10:01 Like you can't have a rule where if someone who's a bad actor is using

10:08 a product that is available to everyone

10:11 that the person who provides that product, you know,

10:13 if if if if I buy a Ford truck and I use the truck to run over my wife

10:20 the fact that I am a murderer and I

10:21 use Ford's product to commit murder doesn't make Ford liable.

10:27 You you know, and they said essentially the same rule

10:29 should apply to to should apply to the internet here.

10:31 So, you know, you have this pattern of, you know,

10:35 harms that in some way can be connected to some behavior by the internet.

10:40 I I could imagine maybe someone making the case

10:44 that the internet is like a fundamentally different

10:46 piece of technology and it's not in the same

10:48 category as a truck or something like that.

10:50 Right.

10:50 But I'm having a hard time imagining what the persuasive legal

10:53 argument would be to hold everything users do on the internet,

10:59 to hold the the the ISPs responsible for that as well

11:04 as everyone else who's using that uh that system.

11:07 Cox and Twitter were correctly decided for that reason because

11:10 like the connection between the thing that the company was providing,

11:16 providing internet service,

11:17 providing a social media site and the harm was was pretty attenuated.

11:23 But like I mean there is a very famous

11:25 suit that is just starting to take off in California.

11:29 And this is like the I guess I would

11:31 call it the drug addiction theory of the internet.

11:34 Um so like, you know, there's been a lot of popular literature

11:38 and a lot of discussion lately about how these internet

11:40 companies are setting up their algorithms to make them

11:44 very addictive so that you keep using their product.

11:47 And so one legal theory that has emerged is

11:50 that if you can show that an internet company, you know, say that, you know,

11:57 TikTok or YouTube or someone has designed their algorithm in order to tweak

12:03 the dopamine system of your brain so you can't look away from it,

12:07 then they should be liable for producing an addictive

12:10 product in the same way that the cigarette companies once upon a time were held

12:15 liable because they were selling an addictive product.

12:19 And I mean, it's I think that's a more plausible legal theory than um the legal

12:26 theories again that the music industry brought

12:29 or that the the the terrorism vic- victims brought.

12:32 But, you know, it would obviously fundamentally remake the internet

12:37 if all of the sudden the courts were micromanaging, well,

12:40 like, "How attractive do you make this product?" It just

12:44 seems to be the reality that responsibility is messy online.

12:49 I mean, you have IP addresses,

12:50 shared networks, dorms, hospitals, even apartment buildings, right?

12:53 Like, the problem, I mean,

12:55 is the problem that the law um wants a neat clean theory Yeah.

13:01 of responsibility, but the infrastructure of the internet just doesn't allow it.

13:06 Right.

13:07 And that's where I'll go back to Justice Kagan's comment about how,

13:10 you know, we are not the nine best experts.

13:12 So, what I think that Kagan understood is that, I mean, look,

13:17 I'm not going to argue that everything is great with the internet right now.

13:20 You know, I'd love to get into why I left Twitter and like,

13:24 you know, why I think that social media has caused tremendous harms to society.

13:29 Yeah, I mean, I think the people who are worried that their kids aren't,

13:34 you know, learning aren't learning algebra cuz they're

13:37 too busy staring at their phones are right.

13:40 But what you don't want to do as a regulator,

13:42 and the Supreme Court is being asked to be a regulator here,

13:46 is come up with new rules that make things worse.

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14:59 What makes me interested in this story is

15:01 that the court is not cautious in all these other areas.

15:05 Like you said, schools, healthcare, civil rights, reproductive rights,

15:10 um they are perfectly fine imposing sweeping changes

15:14 and letting everyone else deal with the fallout.

15:17 So why so much restraint here, right?

15:21 Why is the internet, as you put it,

15:22 an institution that these justices will protect?

15:26 So, I think one possible explanation is that Supreme Court,

15:32 so like the difference between Supreme Court justices and senators,

15:36 or you know, other elected officials,

15:38 isn't that Supreme Court justices aren't partisan.

15:40 You know, they you know, they are appointed through a partisan process,

15:43 they are named by a partisan president, they are confirmed by a partisan Senate,

15:48 and anyone who pays attention to the courts knows

15:52 the difference between a Republican judge and a Democratic judge.

15:55 You know, a Republican judge opposes abortion,

15:57 a Republican judge opposes affirmative action,

16:00 a Republican judge wants more

16:02 expansive legal exemptions for religious conservatives,

16:05 and you know, I can list off a bunch

16:07 of these, and Democratic judges want the opposite of all those things.

16:09 Like, they're fairly consistent in that.

16:12 But, the difference between a justice and a senator

16:16 is that a senator has to run for re-election.

16:19 And so, their partisan operating system is constantly being updated.

16:23 You know, if I am an elected official and I want to win an election in 2026,

16:29 I need to convince my voters that I believe what they believe in 2026,

16:35 which may be different than what they believed in, say, 2018.

16:40 And what I think may explain at least

16:43 some of the justices' caution in around the internet.

16:46 I mean, I think this explains the decision in the Moody case in particular.

16:50 Is that you know, the the latest any Republican justice, you know,

16:55 the the most recently appointed Republican justice is Amy Coney Barrett.

16:59 She was appointed in 2020.

17:00 You know, Clarence Thomas has been sitting on the Supreme Court since 1991.

17:05 You know, many of these folks got their job long before the Twitter wars.

17:12 You know, long before the Republican Party organized around how mad it was

17:19 that that Donald Trump was banned by Twitter

17:21 and Facebook or that, you know, you know,

17:23 long before like people even conceived of this as as an issue

17:27 that like we're going to form a politics

17:30 around whether or not you can get kicked off of Twitter

17:33 or Tik Tok or where or or or or wherever.

17:36 And so like, you know, Kavanaugh and Barrett and it was Roberts who

17:42 was also in the majority and Moody V.

17:44 NetChoice, like I just think that, you know,

17:46 they care about the things that Republicans cared about when they were appointed

17:51 to the court and that list of issues didn't include these new internet issues.

17:59 What I am afraid is going to happen,

18:00 what I think is is likely to happen is that, you know,

18:03 if Trump gets to appoint more justices and we see,

18:06 you know, more people more justice coming out of a Republican Party

18:10 that cares very much about being able to control content on the internet.

18:15 Right.

18:15 That this libertarian approach that the court has

18:18 taken in cases like Moody is going to change.

18:21 If that were to happen, Yeah.

18:23 right, and the court change in that way

18:24 and they were no longer scared to break the internet,

18:26 what would that broken internet look like?

18:29 Um, it's a good question.

18:30 I I mean, Cox was a unanimous decision.

18:34 Um, Twitter, the the the terrorism case,

18:36 that was a unit that was a unanimous decision.

18:39 So like, you know, if if nothing else like Trump is going to have to replace

18:44 a whole lot more justices if he really wants

18:47 to come to the rescue of the music industry.

18:49 I don't know if if if if that's going to happen or not.

18:51 But where I think we're going to see things change very quickly if

18:56 the if the membership of the court starts to change is that we're going

19:00 to see political speech be something that that that is targeted and like states

19:07 that are trying to do things like

19:08 force media outlets to publish more Republican voices,

19:12 you're going to see those laws start to succeed.

19:14 You know, you have two justices on the Supreme Court now.

19:16 This isn't really internet related,

19:18 but the internet's very tied up in the First Amendment.

19:21 Um Clarence Thomas and Neil Gorsuch have both called for overruling

19:27 probably the most important freedom of the press case ever,

19:32 a case called New York Times v.

19:33 Sullivan.

19:34 Um which says that essentially like if a reporter

19:38 has an innocent mistake in one of their articles,

19:41 they can't be sued for millions and millions of dollars for libel.

19:45 Um and you know, if you don't have New York Times v.

19:47 Sullivan, then well, I will tell you what's going to happen cuz I I

19:51 I will tell you the facts of New York Times v.

19:53 Sullivan, which was that The New York Times published an ad that was

19:57 written by civil rights activist that had some minor factual errors in it.

20:02 And the Jim Crow state of Alabama got a jury

20:06 to say The New York Times had to pay in modern dollars,

20:09 I think it's like $6 million.

20:12 Because they published this ad which had factual errors,

20:15 like it misidentified the song that was sung at a particular rally.

20:20 And I I mean like, you know, I try very hard to be accurate in my reporting.

20:23 I'm sure you do as well.

20:25 But I can tell you as someone who's been in this business for two decades,

20:28 it is impossible to never have a factual

20:31 error in anything that you're going to say.

20:33 You're going to make a mistake.

20:34 Yeah.

20:35 And if reporters are suddenly liable for minor factual errors that were

20:40 completely unintentional and that don't really impact the thrust of their story,

20:46 then you can't have journalists.

20:48 So just uh stay with this for a minute, I guess.

20:50 I mean, I if that were to happen, and it's not totally implausible,

20:53 I the consequences for journalism are pretty clearly

20:57 ruinous in the ways you just laid out.

21:00 But what about for just private citizens,

21:02 right, who don't work for institutions like that?

21:03 Like what would it mean for for private citizens who, you know,

21:07 have substacks or just use social media to, you know,

21:11 make political speech and content and that sort of thing.

21:13 I mean, what would how draconian you think it would be at that level?

21:17 I mean, how enforceable could it be?

21:19 I guess like first of all, I want to like come to the the rescue

21:24 of like I guess journalism is a valuable public service.

21:27 Like I mean, I think one way that Well,

21:29 like one way that everyone I'm just I'm just I'm just

21:31 trying to to understand what the consequences would be you know,

21:37 for citizens as well as for you know, what we do.

21:39 It's not just professional journalists who would be impacted by that.

21:42 Everyone who speaks is protected by by decisions like that.

21:47 So, if like some random person who's not a journalist puts

21:51 up a TikTok video where they say disparaging things against I mean,

21:56 let let's say it's it's not even

21:58 they say disparaging things against anyone important.

22:00 Let's say like, you know, a you know, a someone gets a bad grade and they

22:06 say some mean things about their math teacher.

22:09 And let's say that all of the things

22:11 that they say about their math teacher are actually true,

22:14 but there's one like irrelevant factual error in there.

22:17 Like, you know, they they say that the teacher drives

22:19 a green car when the teacher actually drives a blue car.

22:22 Without New York Times v.

22:23 Sullivan, that student could potentially get sued, you know,

22:27 potentially to financially ruinous degrees by that teacher.

22:31 Um and you know, I could apply that, you know,

22:33 that that set of facts to any hypothetical you imagine.

22:36 So, people who publish things that turn out to be

22:40 factually inaccurate even if it was an inadvertent mistake,

22:43 anyone who does that could potentially

22:46 could could could potentially be in trouble.

22:48 What's interesting is that, you know,

22:49 the court again, we've we've been talking about this.

22:51 The court is so split along these familiar ideological lines, right?

22:55 Um to the extent that there is a consensus here, right?

22:59 And I guess there still is.

23:01 And maybe it's motivated by different things, but but what what is,

23:05 as far as you can tell, driving it?

23:06 Right?

23:06 Is it free speech absolutism?

23:08 Is it just market libertarianism?

23:10 What is it that's driving this consensus, such as it is, on the court?

23:14 I mean, 10 years ago, when I was covering the court,

23:17 like there just wasn't that much of a difference

23:20 between Democrats and Republicans at all on First Amendment issues.

23:24 Everyone was a libertarian on First Amendment issues.

23:26 And if anything, the Republican Party wanted a more

23:29 expansive vision of the First Amendment than the Democratic Party,

23:33 because the Republicans wanted the First Amendment to protect

23:36 everything that the Democrats wanted it to protect,

23:38 plus they wanted to strike down campaign

23:40 finance laws under under the First Amendment.

23:43 So, like, both parties had a very libertarian approach to the First Amendment,

23:47 and the Republican approach was even

23:49 more libertarian than the Democrats' approach.

23:51 And over the course of maybe a decade, that has been completely scrambled.

23:58 Um and I think there there there's several reasons for this.

24:02 Um one is that I think social media enabled

24:09 Republicans to figure out the actual preferences of corporate America,

24:14 and they didn't like them.

24:15 And once they learned what corporate America's actual preference was,

24:17 they sort of abandoned free market ideology altogether.

24:21 I mean, it would be like, you know, let's say you walk into the bar into a bar.

24:25 And you sit down at the bar, and there's some guy at the end of the bar

24:29 who is very very loudly disparaging some identity group.

24:34 I don't even care who it is.

24:35 If I'm in that bar for more than a minute having to listen to that guy,

24:39 I'm going to walk the hell out.

24:40 And I imagine most people would would as well.

24:43 So, a smart business is going to remove that person.

24:47 Right.

24:47 You know, they're going to say, "You're chasing away my customers.

24:49 You got to leave." And that's part of what happened on Twitter,

24:53 is that you had people who were saying things that, you know,

24:57 a large number of Twitter's customers didn't want to uh didn't

25:01 want to hear and they and they essentially made it known,

25:03 "Look, it's them or me." And the company said, "Well,

25:07 there's more of you than there are of that so

25:09 we're kicking that out." That's one thing that happened.

25:12 The second thing that happened is that advertisers

25:15 care what content their ad appears next to.

25:20 Yeah.

25:20 And so, if I'm I don't know, a beer company and I pay Twitter or Facebook

25:26 or YouTube or whatever to run my, you know,

25:28 my Budweiser ad and this ad winds up appearing

25:32 next to something racist or if winds up appearing

25:35 next to an image of a swastika or something

25:37 like that, I'm going to be pissed because it makes,

25:40 you know, it it it causes people to associate my brand with something awful.

25:45 And so, I'm going to call up the social media company and say, "Look,

25:48 we're not going to give you any more

25:50 ad dollars unless you fix this." And the way

25:52 that the company fixed it was you ban the people

25:55 who put who are putting up the swastika pics.

25:58 And so, all of this was just free market capitalism.

26:01 Milton Friedman would have loved, you know,

26:04 everything that Twitter was doing during its most

26:07 censorious era because all that it was doing was,

26:11 you know, meeting the needs of the market.

26:14 Right.

26:14 And but that antagonized the people who were who were being banned.

26:19 They organized themselves politically.

26:21 They found a party that was willing to um

26:25 that that that that was willing to side with them.

26:27 They found other people with shunned ideology.

26:30 So, you know, why is RFK Jr., this weird aging hippy with all

26:36 these dumbass ideas about vaccines that have nothing

26:39 to do with anything that the Republican Party has cared about prior to 2024,

26:45 suddenly a cabinet secretary in a Republican administration?

26:49 It's because he's part of the coal- coalition of the shunned.

26:53 You know, there are all of these people who were

26:55 pissed that they were getting banned by social media sites,

26:58 you know, often for different reasons.

27:00 And the racists and the Nazis and the anti-vaxers

27:04 all organized and came together and realized that they

27:07 had a common interest and formed a politics around

27:09 it and that became a really powerful force within

27:11 one of our two political parties and now

27:13 that ideology that that that new coalition that is organized

27:19 around a phenomenon that didn't even exist 20 years

27:22 ago controls the government and controls our health ministry.

27:26 Um so like this, you know,

27:30 the internet has scrambled our political coalitions in ways that I

27:35 think we're just beginning to see the consequences of and you know,

27:39 so why hasn't the Supreme Court you know,

27:43 why hasn't the Supreme Court fully embraced the RFK effication of US politics?

27:48 I go back to my earlier explanation because like many of them

27:52 are older Republicans who formed their views before any of this happened.

27:57 And so, you know, Brett Kavanaugh who like still believes

28:02 what Republicans believed about the about the First Amendment in 2016

28:07 continues to enforce a 2016 version of the internet and not

28:11 the 2026 version of what Republicans think about the First Amendment.

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30:44 [music] Technology always moves too fast

30:51 for the law and for institutions to keep up.

30:55 And that's just a huge problem for society.

30:57 It's true of the internet, it'll be even more true for AI,

31:01 it was true of radio and telegraph,

31:03 the printing press and television and all the rest of it, right?

31:06 I mean, this is just what technology does.

31:08 It moves very, very quick and culture and law and politics do not.

31:14 And the collision between those two realities creates a lot of chaos.

31:18 There's an optimistic story to be told about what you just said,

31:21 which is so like let's take the printing press.

31:23 Like one of the worst times in human history to live

31:26 was like the 200 years after the printing press was invented.

31:30 You know, the printing press led to the Protestant

31:32 Reformation and all of the like holy

31:35 wars and conflicts that came because you suddenly

31:38 had competing churches um fighting for control in Europe.

31:42 It led to the rise of linguistic nationalism.

31:45 So, you know, all of a sudden people in France

31:48 are reading French language newspapers and they think, well,

31:51 the thing that makes me a French person is that I speak

31:53 the French language and if you do not speak the French language,

31:57 then maybe you do not belong here.

31:59 I mean, lots of bad things happened.

32:02 Um I sit back now five or 600 years later and I,

32:05 you know, I'm very happy that the printing press was invented.

32:08 I think [laughter] Yeah, I think books I think books are great.

32:11 I have nothing against Protestants.

32:12 Like I mean, it it's worked out great

32:14 for for for for for all of us over the long term.

32:18 And you know, it's not like there wasn't a government solution to that problem.

32:23 I mean, there were the people had to learn

32:24 how to live in a world where there was all

32:28 of this access to information that hadn't previously existed

32:31 and it took us a while but we eventually did.

32:35 And you know, I don't I don't think I buy the thesis that YouTube or Twitter

32:42 or TikTok or something like that is

32:45 so unlike any communications technology that that has

32:49 come before that the entirety of human imagination

32:53 is inadequate to this problem and that all

32:56 of humanity is doomed to elect people like

32:59 Donald Trump for the rest of, you know, until eventually, you know,

33:04 some Trump of the future nukes us all and human civil I I don't believe that.

33:07 I I think that the the trajectory there is probably going to look like

33:11 the printing press where things are going to be really crappy for a while

33:15 as we're trying to figure out what the world looks like when we have

33:18 this level of connectivity and we'll eventually

33:20 figure out how to operate in that world.

33:23 But, I mean, I'm 48 years old.

33:25 I might be dead before that happens.

33:27 That's the thing.

33:28 And again, leave it to me to to doomify your your your good story here.

33:32 But, the difference is how much disruption can we tolerate, right?

33:36 I mean, that's it's always the question of, all right,

33:39 new technology, disruption,

33:41 and then there's this lag time between when the technology is invented and how

33:45 long it takes us to adapt and figure it out and live peaceably with it.

33:50 Um but, in a world with AI and and computer viruses and nukes Right.

33:55 and all the rest of it, our capacity to derange and annihilate ourselves

34:00 is infinitely higher than it was then.

34:03 That's what worries me.

34:04 Yeah.

34:04 No, it it it is worrisome.

34:06 And I mean, there's certainly, you know,

34:08 I I would put Twitter on the list with uh with nuclear weapons

34:13 of things that I could I would uninvent if I was capable of doing so.

34:18 But, at the same time, like, you are right that a thing that happens over

34:23 and over and over again is that someone invents something new,

34:29 it's usually disruptive, it leads to terrible short-term consequences.

34:33 I mean I I I wrote a book about the history of the Supreme

34:36 Court where I discussed at length how awful it was to be a worker

34:43 in the immediate aftermath of the Industrial

34:45 Revolution where these people were being crammed

34:48 into these factories with machines that would rip their arms off and you know,

34:52 forced to work horrible hours for you know, completely you know,

34:58 for terrible wages and you know, it was miserable.

35:01 I am happy now that the Industrial Revolution happened.

35:05 I I you know, I I I think that you know,

35:07 humanity has on net gained a lot from the fact

35:11 that we have factories and we're able to mass produce things now.

35:15 Right.

35:15 And I guess like you know,

35:18 I mean this is I I I recognize this is unsatisfying but like we

35:21 have seen this narrative play out so many times where something new is invented,

35:26 it leads to terrible short-term consequences

35:28 but the long-term benefits are great.

35:31 Right.

35:31 I I I think that the burden of her someone arguing

35:32 that this new technology is so different than everything that has come than

35:35 everything that has come before it and it's just going to make

35:38 everything worse and we're never going to get the benefit from it.

35:41 I think the person making that argument has

35:43 a has a difficult battle ahead of them.

35:45 They're going to they have a high burden of proof if

35:47 that's what they want to if that's what they want to demonstrate.

35:49 Do you feel like this the thing, you know, the dynamics could change?

35:53 I guess that the hinge factor here is who leaves

35:56 the court and who gets thrown onto the court, right?

35:59 I mean I guess that is that is just everything, right?

36:01 Yeah.

36:01 No, my my answer to any question

36:03 that begins are you optimistic about the Supreme Court?

36:06 I'm going to give the same answer which is tell me who sits on it in 10 years.

36:09 Um you you know, if if Trump gets to replace a bunch more justices or if

36:13 we keep electing people like Trump there is

36:17 no set of circumstances where that ends well.

36:19 Period.

36:20 Um you know, it's just going to get

36:21 more partisan and like the regulation of the internet

36:26 will just become more personalized to advancing the MAGA

36:30 movement than it will than will anything else.

36:33 So, for people interested in the future of the internet,

36:36 are there any other cases coming down the pike that you're keeping

36:39 an eye on and maybe people should keep an eye on as well?

36:43 That California case involving the the addiction theory of the internet, I mean,

36:49 that won't wind up at the in the Supreme Court

36:51 probably for several years if it gets there at all,

36:54 but other people are going to bring that theory

36:56 and there's going to be a First Amendment challenge to it.

37:00 I So, I I think the justices are eventually going to have to weigh in on that.

37:04 And then the other issue that I think is very live

37:07 right now is what are the First Amendment rights of children?

37:12 Yeah.

37:13 There there had been a case So, in the early 2000s,

37:19 there was a lawsuit that struck down a federal law which

37:24 required internet company or that required porn websites to have age gating.

37:30 So, like if you wanted to look at porn online,

37:32 you had to prove you were at least 18 before you could do it.

37:35 And the Supreme Court struck that down,

37:37 and the court just recently handed down a decision saying, "No,

37:40 states can require age gating." And maybe you can explain

37:45 that decision because we just have more sophisticated software now,

37:49 and so we it might actually be possible to put

37:53 up a reliable age gate on a porn website,

37:55 and that just wasn't something that we could do 20 years ago.

37:59 Um but like the first question I had when I read that porn case is look,

38:04 I mean, I I don't think 15-year-olds should be looking at Pornhub,

38:08 and I have no problem with the law that prevents them from doing so

38:12 provided that it is effective and it

38:14 doesn't infringe other people's um First Amendment rights.

38:19 But my concern is like whether that's going to be

38:21 the camel's nose under the tent that leads to young

38:25 people losing more important First Amendment rights or whether something

38:29 like that can be cabin to to be just about porn.

38:33 And you know, the next case in line is

38:36 probably going to be something similar to this Mississippi case

38:39 I described where you have states that want to restrict

38:43 that want to essentially age gate all social media.

38:47 That's where it gets a lot thornier.

38:49 Yeah.

38:50 For sure.

38:50 I mean, I'm in Mississippi and it's it is it is a conversation here, for sure.

38:54 Well, if if you're listening in or watching

38:56 and you're interested in the Supreme Court,

38:58 you should check out Ian's stuff on Vox.

39:00 He's the best.

39:01 All right, Ian.

39:02 You're the best, dude.

39:02 Thanks for doing this.

39:04 It's been a lot of fun, man.

39:04 We'll do it again.

39:05 Thanks so much for having me.

39:07 Thanks for watching.

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