[00:00:00] Speaker 05:
Case number 21-5080, Association of American Physicians and Surgeons, Inc.

[00:00:06] Speaker 05:
and Katharina Verrelli, individually and on behalf of all others, similarly situated, at balance, versus Adam Schiff in his individual capacity and his official capacity as a member of Congress for the 28th Congressional District of California.

[00:00:21] Speaker 05:
Mr. Joseph for the balance, Mr. Tillman for the appellate.

[00:00:25] Speaker 04:
Council for Appellants, please proceed.

[00:00:32] Speaker 02:
Lawrence Joseph, the appellants may please the court.

[00:00:35] Speaker 00:
May I ask you to raise the DS so that your voice can be heard?

[00:00:39] Speaker 00:
Yes.

[00:00:44] Speaker 00:
I had to figure out that.

[00:00:46] Speaker 00:
The courtroom deputy is supposed to explain it.

[00:00:49] Speaker 05:
It is as high as it can go.

[00:00:54] Speaker 02:
It's as high as it can go.

[00:00:55] Speaker 02:
OK.

[00:00:56] Speaker 02:
I'll lean forward perhaps.

[00:01:00] Speaker 02:
Lawrence Judge for the appellants may please the court.

[00:01:04] Speaker 02:
My conference with opposing counsel was that there was a decision yesterday, a 70 page decision.

[00:01:09] Speaker 02:
It appears involving presidential records and committee of Congress.

[00:01:15] Speaker 04:
You mean the decision by this court?

[00:01:17] Speaker 02:
Yes, correct.

[00:01:18] Speaker 02:
And I've read the first page or two on my phone coming in this morning.

[00:01:24] Speaker 02:
It seems that it's not relevant.

[00:01:26] Speaker 02:
So if anyone on the court believes it is, I'd request a chance to review that before responding.

[00:01:33] Speaker 02:
But that involved a committee of Congress tasked with investigating and reporting.

[00:01:39] Speaker 02:
This involves an individual member.

[00:01:40] Speaker 02:
So I don't think it's relevant.

[00:01:42] Speaker 02:
And I just wanted to say that I had not had a chance to read that.

[00:01:46] Speaker 00:
I haven't either.

[00:01:48] Speaker 00:
Does it even relate to speech and debate or standing?

[00:01:51] Speaker 02:
Well, it relates in part, I suppose, to the power of a committee of Congress and the implied investigative powers.

[00:01:58] Speaker 02:
I honestly don't know, Your Honor, if there's anything in there that's relevant.

[00:02:01] Speaker 00:
I don't think so.

[00:02:01] Speaker 02:
Okay, great.

[00:02:02] Speaker 02:
Wonderful.

[00:02:04] Speaker 02:
What this case does relate to, and it was dismissed on immunity and Article III standing grounds, is

[00:02:12] Speaker 02:
the extent to which an individual member of Congress outside the committee structure can interfere with rights of private parties interacting with with third parties.

[00:02:25] Speaker 02:
The

[00:02:26] Speaker 02:
The three sort of important things at issue here are standing.

[00:02:30] Speaker 02:
Immunity, which has two components, the speech or debate clause, and also the Federal Towards Claims Act.

[00:02:35] Speaker 02:
And then the third important issue is the power that the district court for this district was given in 1801, drawing on the common law of England, or Maryland, I should say, as it existed, which was then pretty much close to the common law of England.

[00:02:51] Speaker 02:
And that continued going forward.

[00:02:53] Speaker 00:
So there's also I advise you to start with the standing issue and the speech and debate.

[00:03:02] Speaker 00:
Those are the most important questions.

[00:03:06] Speaker 02:
They are, but I believe the third also relates to standing relates to immunity because the shortly before the founding of this nation and therefore before Maryland came into existence and this common law power was given to the district court here in 1801.

[00:03:21] Speaker 02:
Colonial governor of the crown was held liable for a tort.

[00:03:31] Speaker 02:
which is prosecution of assault false imprisonment and that was done through the common law court, the highest common law court in in England, the King's bench and that same power was given to the Maryland.

[00:03:47] Speaker 02:
uh, state court system, which was given to the DC court system.

[00:03:51] Speaker 06:
Are you, can you cite any case since 1970s reorganization act in which the district court has used this historical common law power?

[00:04:00] Speaker 06:
Well, um, so that's almost 50 years, more than 50 years.

[00:04:04] Speaker 02:
Well, the game and again, uh, heckler versus Gannon, Gannon refers to mandamus and it cites this particular common district courts have mandamus.

[00:04:13] Speaker 02:
Oh, no, the game in court distinguishes the 1361 mandamus.

[00:04:22] Speaker 02:
The venue mandamus act from if you if you go back and look at the game and we cite this is your serious argument.

[00:04:28] Speaker 00:
The article three that article three is not the limitation on the federal district court in this circuit.

[00:04:37] Speaker 02:
The

[00:04:38] Speaker 02:
The district court has the power to create a tort against an officer of the national government.

[00:04:45] Speaker 00:
That may or may not be true, but are you suggesting that the district court is like the Supreme Court of Massachusetts?

[00:04:53] Speaker 00:
It's not bound by article three.

[00:04:56] Speaker 02:
It has the power to create torts.

[00:04:58] Speaker 02:
It's of course bound by article three standing.

[00:04:59] Speaker 02:
Yes.

[00:05:00] Speaker 00:
So why don't we go to the standing and speech and debate because we don't have to even

[00:05:04] Speaker 00:
If you lose on those, we don't even have to get to it.

[00:05:07] Speaker 02:
Well, well, they do animate the standing inquiry because for several reasons.

[00:05:11] Speaker 02:
One is if this, if a tort were created for just this kind of interference, certainly there's, there are concrete, uh, things information.

[00:05:19] Speaker 04:
You don't have to have injury in fact, that's the third time you've been asked to address standing.

[00:05:28] Speaker 04:
Why don't you?

[00:05:30] Speaker 02:
Thank you, your honor.

[00:05:31] Speaker 02:
So the concrete injuries here are loss of revenue, loss of information, inability to associate, a reputational injury, contracts that were modified.

[00:05:44] Speaker 02:
Those are all contract, concrete.

[00:05:48] Speaker 03:
Loss of what?

[00:05:51] Speaker 02:
Loss of income?

[00:05:54] Speaker 02:
Yes, we've mentioned that, yes.

[00:05:56] Speaker 03:
How much?

[00:06:02] Speaker 02:
That was not quantified.

[00:06:03] Speaker 04:
No, so we have no idea whether that's a penny or more.

[00:06:08] Speaker 04:
What's your second loss?

[00:06:12] Speaker 02:
Well, we're being branded as anti-vax in this instance.

[00:06:18] Speaker 04:
Who's branding you?

[00:06:22] Speaker 02:
Both the defendant and, I suppose, also the third party tech companies.

[00:06:28] Speaker 04:
Where did he brand you as such?

[00:06:32] Speaker 02:
In his inquiries to the tech companies and in the background negotiations that happened before those were released.

[00:06:46] Speaker 04:
His inquiries to the tech companies do not even mention you or your organization.

[00:06:53] Speaker 03:
That's correct.

[00:06:54] Speaker 04:
So that doesn't work for you.

[00:06:57] Speaker 04:
And what's the background?

[00:07:00] Speaker 04:
No, I mean, council, let's be clear.

[00:07:03] Speaker 04:
What's the background discussion by the chairman?

[00:07:08] Speaker 02:
I'm sorry, could you?

[00:07:09] Speaker 02:
I didn't.

[00:07:11] Speaker 02:
I didn't hear you.

[00:07:14] Speaker 04:
What is the background discussion by the chairman on which you are relying?

[00:07:21] Speaker 04:
Well, the chairman has been branded as anti facts.

[00:07:29] Speaker 02:
The.

[00:07:30] Speaker 02:
Um, the interaction between the office, the congressman's office and the, um, the companies with which he was specifically counsel.

[00:07:42] Speaker 04:
I didn't see anything in your brief.

[00:07:43] Speaker 04:
He's inquiring of these companies.

[00:07:46] Speaker 04:
He doesn't mention you or your operation or anything.

[00:07:56] Speaker 02:
The allegation in the complaint is that they worked behind the scenes to develop a position, and then they issued this press release announcing that the... That's going to causation.

[00:08:12] Speaker 00:
Let's assume arguing just for purpose of discussion, because you have injury, in fact, if your voice is muted, if your ability to speak

[00:08:26] Speaker 00:
is somewhat diminished.

[00:08:28] Speaker 00:
That could be injury, in fact, but I don't see for the life of me how you get causation.

[00:08:39] Speaker 02:
Well, again, we would be willing to bring in the third party companies as well.

[00:08:43] Speaker 00:
No, no, no, no, no, no.

[00:08:44] Speaker 00:
Your case is before us now.

[00:08:46] Speaker 00:
What is your theory of causation?

[00:08:49] Speaker 02:
That this was the intended result of what was

[00:08:53] Speaker 02:
The elimination, the platforming of... So there are these search engines that used to develop a reliable stream of traffic to our sites.

[00:09:06] Speaker 02:
Google is one of the bigger ones.

[00:09:09] Speaker 02:
DuckGo, I think, is one of the smaller ones.

[00:09:12] Speaker 00:
So the social media cut you down, right?

[00:09:17] Speaker 00:
That's right.

[00:09:18] Speaker 00:
But what's the causation?

[00:09:20] Speaker 02:
the causation is that may be the injury in fact where's your causation the negotiation between the congressman's office and the tech companies but the congressman never even mentioned the tech company he did communicate with the i never mentioned you yeah well we are uh so we're not we're not alleging i guess um defamation in that he said no no there's no connecting link well the connecting link is down we have uh

[00:09:49] Speaker 02:
what the complaint alleges is good information presenting all sides of the debate on vaccines.

[00:09:54] Speaker 02:
Anything that questions the dominant narrative from Representative Schiff is considered anti-vax information.

[00:10:02] Speaker 02:
You can't listen to that.

[00:10:05] Speaker 02:
So maybe we weren't the intended victim.

[00:10:08] Speaker 00:
You have a third party who arguably caused you injury.

[00:10:14] Speaker 00:
But there is no connection to the defendant.

[00:10:17] Speaker 02:
The defendant sent his letters.

[00:10:19] Speaker 02:
We say they negotiated beforehand before they were released and then immediately thereafter.

[00:10:24] Speaker 02:
We had a plummet.

[00:10:26] Speaker 02:
I think we think that there's enough there for for Article 3 standing and causation and and how about redress ability?

[00:10:36] Speaker 02:
Well, redress ability if

[00:10:39] Speaker 02:
There's two things, I suppose.

[00:10:42] Speaker 02:
One, we could get damages.

[00:10:44] Speaker 02:
That's a possibility.

[00:10:45] Speaker 02:
It gets to the immunity question, which we haven't discussed yet.

[00:10:48] Speaker 04:
Have I mentioned for what, particularly?

[00:10:52] Speaker 02:
Abuse of process interference with constitutional law?

[00:10:57] Speaker 04:
Abuse of process interference with what?

[00:11:01] Speaker 02:
With First Amendment rights.

[00:11:08] Speaker 02:
So I'm trying to retrace my thoughts.

[00:11:11] Speaker 02:
So the immunity.

[00:11:12] Speaker 04:
In other words, any time a member of Congress writes a private entity about a particular subject of interest to your association,

[00:11:36] Speaker 04:
That's enough for Article III standing.

[00:11:43] Speaker 02:
Well, this was a little bit of an extreme example that, I mean, the answer to your question may be yes or no, but here what we have is very targeted to deplatform.

[00:11:56] Speaker 02:
So it's not just writing a letter.

[00:11:57] Speaker 02:
The goal is to sort of shut down information of a disfavored variety.

[00:12:03] Speaker 02:
And yes, the fact that he's a federal actor makes that problematic, whereas if they were just private actors conspiring, that would be a different thing.

[00:12:10] Speaker 04:
So you would just cut back on Congress's ability to inquire, and we haven't gotten to the speech or debate yet, but you're just saying he's just a single congressman, although you sued him as chairman, right?

[00:12:29] Speaker 02:
No.

[00:12:31] Speaker 04:
You sued him individually?

[00:12:34] Speaker 02:
Yes.

[00:12:35] Speaker 04:
You're seeking damages against him individually?

[00:12:38] Speaker 02:
Sorry, let me clarify.

[00:12:40] Speaker 02:
We didn't sue him in his capacity as chairman of the Intelligence Committee.

[00:12:47] Speaker 02:
We sued him in his official and individual capacity.

[00:12:50] Speaker 02:
His official is as a member of Congress.

[00:12:53] Speaker 04:
But you're going after him as an individual as well?

[00:13:01] Speaker 02:
We named him individually as well.

[00:13:09] Speaker 02:
And for abuse of process, if indeed that's what he did.

[00:13:11] Speaker 02:
If what he, I mean, again, he is not Congress.

[00:13:14] Speaker 02:
We've heard him several times, Your Honor, as Congress.

[00:13:16] Speaker 02:
He is one member of one body of the House.

[00:13:20] Speaker 02:
I'm sorry, one member of one body of Congress, the House.

[00:13:25] Speaker 02:
He is not, he does have an interest, I suppose, as indicated by prior years in which he got issued a sort of an identical sense.

[00:13:38] Speaker 04:
Back to Judge Silverman's question, redressability.

[00:13:44] Speaker 02:
So damages or an injunction that would take away, again, he's publishing on social media, which under Proxmire and maturely, he's outside of the realm of Congress.

[00:13:55] Speaker 00:
If we get- Let me stop you for that, a moment on that.

[00:14:00] Speaker 00:
You do mention letters he sent from Congress, but that has nothing to do with your

[00:14:14] Speaker 00:
problem in of your case.

[00:14:16] Speaker 00:
You grab them in her case.

[00:14:18] Speaker 00:
I gather is that the defendant by sending letters to social media implicitly threatened them.

[00:14:30] Speaker 00:
Isn't that correct?

[00:14:32] Speaker 02:
In truth, I suppose we don't know if they were willing co-conspirers or whether he coerced them in a threatening way and made them do it.

[00:14:40] Speaker 00:
I thought that you, I understood your complaint was

[00:14:44] Speaker 00:
that there was a threat, an implicit threat.

[00:14:47] Speaker 02:
We allege that he coerced them into this, yes.

[00:14:50] Speaker 00:
So the outside communication has nothing to do with your case.

[00:14:54] Speaker 02:
The publication on social media by the congressman.

[00:14:58] Speaker 02:
So I'm sorry, social media comes into play here in two ways.

[00:15:02] Speaker 00:
No, no, I know how social media comes into play.

[00:15:05] Speaker 00:
That's your third party factor.

[00:15:10] Speaker 00:
You're absolutely right about the Proxmire case indicating that communications outside Congress are not covered by speech and debate.

[00:15:19] Speaker 00:
And you do have communications, but they're not relevant to your gravamen of your suit, which is the threat.

[00:15:29] Speaker 02:
But he also goes on social media and, and brags about this.

[00:15:33] Speaker 02:
So this is, this is essentially posturing.

[00:15:35] Speaker 00:
I mean, again, the way this bragging about it is not part of your loss and not part of your injury.

[00:15:41] Speaker 00:
Your injury is that you were kicked off the social media and branded.

[00:15:47] Speaker 02:
I mean, to the extent that reputational injury is part of it, uh, the, the, the, the, the broad brush of calling because of being kicked off social media, you're hurt.

[00:15:57] Speaker 00:
Okay.

[00:15:58] Speaker 00:
That's your injury.

[00:16:01] Speaker 00:
there's a reputational injury but yes that's that's the primary one okay so the so all i'm trying to say is the outside communication is not really relevant to the key of your lawsuit which is the threat the alleged threat that his communication with social media

[00:16:21] Speaker 02:
Well, I would disagree because if a body of Congress wants to enact a law about some thing, sort of behavior being inappropriate, they can do that and it has to get signed by the president or overwritten.

[00:16:34] Speaker 02:
But this is just one member of Congress saying bad things about something and then going online in his social media accounts afterwards and saying bad things about

[00:16:47] Speaker 02:
a particular line of thought and that line of thought then being beaten down, suppressed from the public debate.

[00:16:56] Speaker 00:
Is your case a defamation case?

[00:17:01] Speaker 02:
No, there's a defamation injury and we wanted to be... He's put a... I didn't see that in your complaint.

[00:17:06] Speaker 00:
There's a reputational injury that's cited in the complaint if you want... Reputational injury because of being kicked off

[00:17:12] Speaker 00:
the social media.

[00:17:14] Speaker 02:
I'm sorry, it's being called anti-vax.

[00:17:17] Speaker 02:
The complaint says that means unintelligent or uneducated.

[00:17:20] Speaker 02:
And what it really means is someone that disagrees with the representatives never live on whatever he thinks is right about.

[00:17:27] Speaker 04:
So counsel, the facts of your case were as follows.

[00:17:33] Speaker 04:
You put things on social media.

[00:17:38] Speaker 04:
And your statements are

[00:17:41] Speaker 04:
We have questions about these vaccines, but on the one hand, there's this view, on the other hand, there's that view.

[00:17:47] Speaker 04:
And so in your opinion, you're not pro-vax or anti-vax, all right?

[00:17:55] Speaker 04:
So the fact that the congressman writes letters saying to the tech companies, I'm concerned about misinformation appearing

[00:18:13] Speaker 04:
It doesn't have anything to do with you.

[00:18:17] Speaker 04:
But it resulted in our- Let me end by hypothetical.

[00:18:21] Speaker 02:
I'm sorry.

[00:18:21] Speaker 04:
So now you say, well, if we say to the congressman, you're liable in damages, and suppose he pays the money, how does that stop Google, everybody else,

[00:18:43] Speaker 04:
where you made money before, from keeping you off?

[00:18:49] Speaker 02:
Well, that is a form of redress, if the question is article 3 standing.

[00:18:54] Speaker 04:
But you're trying to, you base your injury on what happened as a result of these letters, where the letters said nothing about you in terms of your association.

[00:19:08] Speaker 04:
All right?

[00:19:09] Speaker 04:
So all I'm getting at is,

[00:19:13] Speaker 04:
How is your injury redressed by making a member of Congress pay damages?

[00:19:24] Speaker 04:
Because the people or the entities you want to carry your message have decided they're not going to carry it anymore for whatever reason.

[00:19:34] Speaker 04:
They had a change in the board of directors.

[00:19:36] Speaker 04:
They had a change in policy.

[00:19:38] Speaker 04:
They're just not going to carry your messages anymore.

[00:19:42] Speaker 02:
The other, and this goes back to Judge Silverman's question about redressability, I said there were two.

[00:19:48] Speaker 02:
I mentioned damages.

[00:19:49] Speaker 02:
We went off on the recent discussion.

[00:19:51] Speaker 02:
The other is that we could get his statements outside of Congress, so his social media statements taken down.

[00:20:01] Speaker 02:
That's a form of equitable relief.

[00:20:03] Speaker 02:
Doesn't even implicate the Federal Towards Claims Act.

[00:20:08] Speaker 02:
That would leave us free as far as standing first party injury are concerned.

[00:20:12] Speaker 02:
That would leave us free to negotiate with the Googles of the world.

[00:20:17] Speaker 02:
You may express.

[00:20:19] Speaker 04:
Let me understand.

[00:20:20] Speaker 04:
What would the court order say about his outside statements?

[00:20:25] Speaker 02:
You said the four corners.

[00:20:28] Speaker 02:
No, the court.

[00:20:29] Speaker 04:
I said.

[00:20:35] Speaker 00:
Judge Rogers asked, what did the court below say about that?

[00:20:42] Speaker 02:
The court below, I don't believe addressed

[00:20:47] Speaker 02:
I may be wrong here.

[00:20:48] Speaker 02:
I don't just don't recall how the court addressed the idea that there's a first party injury by virtue of interacting with the vendor Vendi relationship and just take the redress ability would exist under.

[00:21:00] Speaker 06:
I think the question is what would our court order say.

[00:21:05] Speaker 02:
Oh well it would say take okay.

[00:21:08] Speaker 02:
So it would say that this is improper meddling.

[00:21:13] Speaker 04:
What is asking questions of tech companies?

[00:21:18] Speaker 02:
Well, you're taking the surface of what's available.

[00:21:24] Speaker 04:
It's not a letter that says take down this website.

[00:21:28] Speaker 04:
All right.

[00:21:30] Speaker 04:
It says I'm concerned about this information being sent out and the tech companies said we're not doing that.

[00:21:39] Speaker 04:
You know, and discussion.

[00:21:41] Speaker 04:
Or the tech company could say, we're not going to carry certain websites in the future.

[00:21:48] Speaker 04:
And what does our order stay to be sure that your website is not taken down?

[00:21:57] Speaker 02:
Well, the availability of declaratory relief or adjunctive relief about the inappropriateness of, to the extent that we can prove that Representative Schiff worked behind the scenes, and this wasn't really honest fact-finding, which is what we allege.

[00:22:11] Speaker 02:
We allege it was Kabuki Theater.

[00:22:13] Speaker 02:
He arranged the result with them, then sent a letter, and then hey, presto, they did a press release, and then he- But you know, in a complaint, you are saying to the court, you can prove this.

[00:22:27] Speaker 04:
And you've made allegations, but now on the motion to dismiss, what did you say in response?

[00:22:39] Speaker 02:
I don't believe that this issue came up particularly.

[00:22:41] Speaker 02:
I think we were given short shrift.

[00:22:44] Speaker 02:
And I think the court is supposed to assume the truth of our allegations and didn't in this respect.

[00:22:54] Speaker 02:
But again, so, if we remove the thumb on the scale that we say Representative Schiff is trying to put, then we'd be free to win or lose.

[00:23:04] Speaker 02:
And that's FEC versus Aitken's in our negotiations without the impermissible federal interference.

[00:23:13] Speaker 06:
I mean, members of Congress frequently make speeches or send letters on all number of topics which may affect private behavior, which then may have an effect on a third party organization.

[00:23:28] Speaker 06:
Are you aware of any case in which a court

[00:23:32] Speaker 06:
has found that to be an injury for the third party where a member of Congress's actions have, you know, created an, arguably created an impact that had an effect on a third party.

[00:23:43] Speaker 06:
I mean, because this is happening every day, right?

[00:23:45] Speaker 06:
Where members of Congress are speaking out on various.

[00:23:48] Speaker 02:
Well, it shouldn't be in this sense.

[00:23:50] Speaker 02:
This is someone basically as a lone wolf.

[00:23:53] Speaker 00:
Counsel, isn't your answer, your best answer, the Proxmire case?

[00:23:57] Speaker 02:
Well, there's the Proxmire case.

[00:23:59] Speaker 02:
There's also Block versus Meese, which was the Department of Justice, but it wasn't a member of Congress, but they were labeling someone as propaganda.

[00:24:07] Speaker 02:
Here we're being labeled as anti-facts and idiots and anti-science, which is odd because my clients are the scientists, not the representative.

[00:24:18] Speaker 02:
And so,

[00:24:21] Speaker 06:
I understand that, and I understand the political harm that you are alleging, but in what way is it an Article 3 type of injury?

[00:24:32] Speaker 02:
in the same way in Blanc versus Mies.

[00:24:34] Speaker 02:
In other words, in Blanc versus Mies, the label was propaganda.

[00:24:41] Speaker 02:
And if you were associated with the propaganda, you were a bad person.

[00:24:44] Speaker 02:
And this court distinguished between legal causation and de facto causation.

[00:24:50] Speaker 02:
Legal causation went to whether you could prove damages or not.

[00:24:54] Speaker 02:
All you needed for standing was de facto causation, which is if people incorrectly believe that

[00:25:02] Speaker 02:
You're, you know, the DOJ tried to argue with propaganda does mean what they're saying it means, but people are taking it that way.

[00:25:08] Speaker 02:
And here it's even worse because there they were still able to reach their customers.

[00:25:12] Speaker 02:
It was the eighties.

[00:25:14] Speaker 02:
Now we don't even really they have severed the connection between us and our the people with whom we were communicating.

[00:25:21] Speaker 02:
So we don't even get to the question of whether the consumer thinks the anti-vax label is is

[00:25:30] Speaker 02:
improper, and therefore they should dissociate with us.

[00:25:33] Speaker 02:
That was the issue when Block vs. Me is engaged.

[00:25:35] Speaker 00:
But I'm still trying to figure out why the community, I grant you under Proxmire, the Supreme Court said communications directed outside of Congress may not be covered by speech and debate.

[00:25:49] Speaker 00:
But I still don't see why that is relevant to your basic gravamen in your case, which is an implicit threat.

[00:26:00] Speaker 00:
Congress makes and thereby the social media kick you off.

[00:26:08] Speaker 00:
So the communication outside doesn't seem to have particular relevance.

[00:26:13] Speaker 00:
you're upset about being kicked off.

[00:26:15] Speaker 02:
Well, I mean, to some extent, your question recalls Franklin versus Massachusetts.

[00:26:22] Speaker 02:
I might have the order wrong.

[00:26:23] Speaker 02:
But the idea there was, how is this?

[00:26:25] Speaker 02:
I can't order the president to do something.

[00:26:27] Speaker 02:
But just a court ruling saying what the law is would be meaningful.

[00:26:32] Speaker 02:
In other words, saying, you can't do this under the First Amendment.

[00:26:34] Speaker 02:
That would stop.

[00:26:36] Speaker 00:
That wouldn't mean.

[00:26:36] Speaker 00:
I was just dealing with your communication outside.

[00:26:41] Speaker 00:
Right.

[00:26:41] Speaker 00:
And if that's impermissible, we can strike it particularly relevant to your case.

[00:26:47] Speaker 00:
Well, you're not making a defamation argument as was true in Proxmire.

[00:26:52] Speaker 02:
Right.

[00:26:52] Speaker 02:
That's true.

[00:26:53] Speaker 02:
We're not making a defamation argument.

[00:26:55] Speaker 00:
Your basic argument, I understand it, is there was an implicit threat when the congressman sent a letter out and the third party reacted to that implicit threat.

[00:27:08] Speaker 00:
That's your allegation.

[00:27:10] Speaker 02:
That is one half of it.

[00:27:11] Speaker 02:
The other side of that coin is that they're working together to suppress speech.

[00:27:16] Speaker 00:
Oh, come on.

[00:27:17] Speaker 00:
That's the legal conclusion.

[00:27:19] Speaker 00:
I'm talking about the facts of your allegations.

[00:27:24] Speaker 00:
I understand your allegations.

[00:27:26] Speaker 00:
All I'm trying to say, it doesn't seem to have anything to do with public statements.

[00:27:31] Speaker 00:
It has to do with pressure on the social media companies.

[00:27:38] Speaker 02:
That is a component and then he's gloating about it afterwards.

[00:27:41] Speaker 00:
And if he's gloating or not, that's not relevant.

[00:27:45] Speaker 00:
Your only concern is that he allegedly knocked you off social media.

[00:27:53] Speaker 02:
Okay.

[00:27:55] Speaker 02:
But the question is to the extent to which judicial power can touch what he's doing either before or after under the, the, the, um,

[00:28:05] Speaker 00:
Well, there's several problems.

[00:28:06] Speaker 00:
The first of which there is no direct threat against you.

[00:28:10] Speaker 00:
Not at all.

[00:28:11] Speaker 00:
You're not even mentioned.

[00:28:14] Speaker 00:
Uh, so causation seems to be very weak, very weak.

[00:28:20] Speaker 00:
There's no, there's nothing you will edge that leads us to conclude that your allegation is that there was a threat and therefore they fold it.

[00:28:33] Speaker 00:
You didn't say that.

[00:28:34] Speaker 02:
Well, and then the First Amendment context that we're in, over-breath is another concern.

[00:28:38] Speaker 02:
In other words, if someone's shooting out, I mean, normally if they were saying that you were doing something improper or whatever, I won't come up with a colorful example, but that might be defamation.

[00:28:49] Speaker 02:
But if what you're doing is saying a whole group of thought is improper for public discourse and shouldn't be online, that is causation.

[00:29:05] Speaker 00:
I don't have any questions.

[00:29:09] Speaker 04:
Okay, why don't we hear from Council for Appellate?

[00:29:24] Speaker 01:
Good morning, Your Honors.

[00:29:25] Speaker 01:
Todd Tatelman for Congressman Schiff.

[00:29:27] Speaker 01:
I'm the Principal Deputy General Counsel for the House of Representatives.

[00:29:31] Speaker 01:
I want to start, I think, where all three of you already are, Your Honors, which is there's an 800 pound gorilla in the room here.

[00:29:38] Speaker 01:
There is an absence of standing here because whatever injuries these plaintiffs may have suffered, and I'm not going to concede that they suffered any legal.

[00:29:47] Speaker 00:
Well, why wouldn't a diminution in their ability to speak be as much of an injury as turning off the megaphone from somebody speaking in

[00:30:01] Speaker 00:
Lincoln Park.

[00:30:03] Speaker 01:
If there were an actual diminution, Judge Silberman, I think you'd be right, but there isn't one here.

[00:30:09] Speaker 01:
They haven't alleged one here.

[00:30:11] Speaker 00:
They haven't alleged their voice has been muted.

[00:30:14] Speaker 01:
They've alleged that their social, that their internet presence has been diminished, but they're still able to publish.

[00:30:19] Speaker 00:
That's an injury in fact, seems to me.

[00:30:23] Speaker 00:
Although the district judge didn't think so, but

[00:30:28] Speaker 00:
I have more problems with causation and regressibility.

[00:30:32] Speaker 01:
I was just about to get there, Your Honor, which is to say, even if you assume that there is an injury in fact, the problem here is that Mr. Schiff, the congressman, is the wrong party to be the defendant.

[00:30:44] Speaker 01:
The proper parties here are the tech companies.

[00:30:47] Speaker 00:
Suppose the letter that Congressman Schiff sent to the social media company

[00:30:57] Speaker 00:
said, I want the defendant off social media, and if you don't accommodate my views, God help you on section 230.

[00:31:14] Speaker 01:
If that were what a hypothetical letter says, and it's certainly not what the letter's congressmanship sent in this case said, but if that were a hypothetical letter sent, then I would need to shift my focus and talk to you about the fact that he would still be immune under the speech or debate clause because that official letter would potentially implicate other things, particularly the legislation necessary to enact

[00:31:38] Speaker 01:
uh, changes to section 230, but right now we're only talking about, about standing and under the standing doctrine as this case has been presented.

[00:31:47] Speaker 00:
First of all, there was no, there would be causation under that.

[00:31:50] Speaker 01:
My hypothetical, whether or not I would certainly challenge that there would be causation.

[00:31:55] Speaker 01:
Yes.

[00:31:56] Speaker 00:
Why, why, why wouldn't you concede there was causation?

[00:31:59] Speaker 01:
I wouldn't concede it, Your Honor.

[00:32:01] Speaker 01:
I would suggest that there was still an absence of causation because the tech companies still needed to effectuate that.

[00:32:07] Speaker 01:
His clients' injuries are caused by the tech companies.

[00:32:11] Speaker 01:
Their actions are the cause of the injuries, not the letters.

[00:32:14] Speaker 00:
In other words, the congressman could, with impunity, threaten the tech companies.

[00:32:23] Speaker 01:
I wouldn't say with impunity, your honor, he could certainly make his public policy position well known.

[00:32:29] Speaker 01:
He could certainly advocate for a position that says, because you tech companies have failed to do things that I find or other members like me find unacceptable, we are going to consider legislation that would remedy that.

[00:32:41] Speaker 01:
He may do those.

[00:32:42] Speaker 00:
The question is whether that might still be covered by speech debate, but wouldn't causation be established?

[00:32:49] Speaker 01:
Again, under your hypothetical, Your Honor, I think that you're assuming that the link follows, that because he makes the threat, the tech companies do what he wants them to do or they refuse to do it and Congress passes a change in the law.

[00:33:05] Speaker 01:
Either way, I think their causation link is problematic because the independent actor of the tech company still gets to make a decision.

[00:33:13] Speaker 01:
Facebook could decide, we're perfectly comfortable leaving these people on our platform and we're perfectly comfortable with whatever Congress comes up with.

[00:33:20] Speaker 00:
Normally, we conclude if somebody puts a gun to the hand of a third party and says, do something, causation is established.

[00:33:29] Speaker 01:
Under certain circumstances, I would agree with that, your honor, but here I don't know that that necessarily follows because these tech companies are motivated by a tremendous number of factors, none of which can be established would in your hypothetical doesn't necessarily establish that it would be congressman shifts letter or his his threat express or implicit that would lead them to take the actions that cause the injury.

[00:33:50] Speaker 01:
It might, and if it could be established that it did, I would concede the causation was there, but simply on its face, I don't know that that's sufficient, and I would certainly suggest that it isn't.

[00:34:02] Speaker 06:
And would such a letter be covered by the speech and debate community?

[00:34:06] Speaker 01:
I would want to see exactly I would want to probe more details into what exactly the letter says, but hypothetically a letter that suggests that unless a private company does certain things that Congress finds acceptable.

[00:34:20] Speaker 01:
Congress is going to consider changes in the law and lays out with those.

[00:34:23] Speaker 01:
potential changes would be, I would think we could make a very good argument that such a letter could be covered under this feature debate clause.

[00:34:30] Speaker 01:
There's a line there and it could cross it.

[00:34:31] Speaker 06:
Congress has the authority to direct private companies to take action?

[00:34:36] Speaker 06:
Not direct.

[00:34:37] Speaker 06:
A single member has the ability to do that?

[00:34:40] Speaker 01:
No, Your Honor, a single member doesn't have the ability to do it.

[00:34:43] Speaker 06:
But you're saying that would be a legislative activity.

[00:34:46] Speaker 06:
Telling a private company what to do would be a legislative activity within the scope of the speech and debate clause.

[00:34:51] Speaker 01:
I'm suggesting that it could be a legislative activity, depending on how it was phrased, depending on the rest of the context.

[00:34:57] Speaker 06:
Directing private companies what to do as a legislative activity?

[00:35:00] Speaker 01:
I don't think it would be directing them, Your Honor.

[00:35:04] Speaker 01:
As I understood Judge Silverman's hypothetical, it was a suggestion.

[00:35:09] Speaker 01:
It was using the political tools and the leverage that they have to change the law to effectuate a result.

[00:35:16] Speaker 01:
Again, I think there is a line there that, and this is why I hedged at the beginning, which is there is a line and I'm willing to concede that.

[00:35:24] Speaker 01:
But I don't know that merely suggesting that unless a member could suggest to a group of companies like this, that unless you all companies make significant changes to your operations or your behaviors, the Congress is going to consider legislation to make them for you.

[00:35:40] Speaker 01:
I do think that potentially would be protected under the speech or debate clause.

[00:35:44] Speaker 01:
How you communicate that, the language that gets used, all of those things would come into play in that analysis.

[00:35:49] Speaker 01:
But as a hypothetical matter, yes, I think that potentially could be covered.

[00:35:54] Speaker 00:
Could there be constitutional problems that would circumvent the speech and debate clause?

[00:35:59] Speaker 00:
Are you familiar with the Pillsbury case in the Fifth Circuit?

[00:36:03] Speaker 01:
From the Fifth Circuit, Your Honor, yes, where the members in that case interfered with the decision makers at the regulatory agency.

[00:36:10] Speaker 00:
Right.

[00:36:12] Speaker 00:
And that was a violation of the Constitution?

[00:36:16] Speaker 01:
That was found to have been a violation of due process for that company.

[00:36:19] Speaker 00:
Yes, yes, yes.

[00:36:21] Speaker 00:
I'm glad you are familiar with the case.

[00:36:24] Speaker 00:
But would not any threat a congressman issued against speech raise First Amendment questions, just like due process questions.

[00:36:40] Speaker 01:
Yes, it would raise those questions, your honor.

[00:36:43] Speaker 01:
But the Supreme Court's jurisprudence and this court's jurisprudence, and I would point you to the most recent example being the case Rangel versus Boehner, has said very clearly that the mere allegation that something violates a constitutional right or even a rule of the House isn't enough to get around the speech or debate immunity.

[00:37:01] Speaker 01:
So, yes, it would raise the questions, but I still think the immunity could hold.

[00:37:05] Speaker 00:
Well, under any circumstances, no matter how

[00:37:09] Speaker 00:
Significant the threat was to stop speaking.

[00:37:14] Speaker 01:
Again I want to be I want to be careful very careful here because I don't want to suggest that there are absolutely no circumstances upon which but I think you have to get very very far down the line here and I'm not sure that the hypothetical circumstances that we're talking about get that far down the line

[00:37:33] Speaker 01:
hypothetically they could.

[00:37:34] Speaker 01:
I think we could come up with potential examples between us that might reach that.

[00:37:39] Speaker 01:
This case certainly doesn't come anywhere close to it.

[00:37:41] Speaker 01:
So even if there are examples, several steps removed from where we are here, this case isn't that case.

[00:37:49] Speaker 06:
Just ask you to clarify something.

[00:37:52] Speaker 06:
On the sovereign immunity point is it is it.

[00:37:57] Speaker 06:
Is it the position is your position that if this is only sovereign immunity that is covered by the West all act.

[00:38:05] Speaker 06:
Or are you suggesting there's some broader sovereign immunity that is not that I just want to be.

[00:38:10] Speaker 01:
We've been very we think we've been very clear in our papers that it is the first one the Westfall act it's the sovereign immunity that has been extended by Congress through the Westfall act in the amendments to the FTC in 1988.

[00:38:22] Speaker 06:
You're not claiming any non statutory.

[00:38:24] Speaker 01:
No no you're not.

[00:38:29] Speaker 01:
I'm happy to answer any other questions.

[00:38:31] Speaker 01:
Judge Rogers, if you had any or anyone else, if not, I think it's very clear the district court's opinion was correct.

[00:38:37] Speaker 01:
It should be upheld.

[00:38:38] Speaker 01:
The lack of standing and the application of the speech or debate clause to this particular case are more than sufficient to uphold the motion to dismiss.

[00:38:47] Speaker 01:
Judge Contreras's opinion is correct as a matter of law and this court should uphold it.

[00:38:53] Speaker 04:
Thank you, counsel.

[00:38:55] Speaker 04:
All right, counsel for appellants.

[00:39:01] Speaker 02:
I regret that we didn't talk about immunity before, because I think it's a little unfair to my colleague to have me say what I'm going to say now, which is all in our briefs.

[00:39:10] Speaker 04:
There is no speech... Can you previously talk about what?

[00:39:15] Speaker 02:
Immunity.

[00:39:17] Speaker 02:
When I was at the podium, we talked about standing and... So what is your argument?

[00:39:21] Speaker 02:
Essentially, the Westfall Act provides no immunity.

[00:39:26] Speaker 02:
It's more of a double negative.

[00:39:28] Speaker 02:
What the, what the does is it waves sovereign unity for damages.

[00:39:33] Speaker 02:
It has nothing to do with injunctive relief.

[00:39:35] Speaker 02:
It waives sovereign immunity for damages, but under the past and versus Davis, there is no sovereign immunity for or rather there's no, yeah, there's no common law sovereign immunity from members of Congress.

[00:39:47] Speaker 02:
outside of the speech or debate clause.

[00:39:48] Speaker 02:
So if we're right that this is not within the speech or debate clause, he has no immunity whatsoever.

[00:39:54] Speaker 04:
What the Westfall Act does is it says- I think our questions have tried to make you focus on the allegations in your complaint and what your claimed causation is and how we could redress that.

[00:40:17] Speaker 02:
I think the, well, so if we're right about immunity, which I didn't discuss before because you didn't ask me about it, if we're right about immunity, then we could perhaps amend the complaint to address standing.

[00:40:29] Speaker 02:
So in other words, we lost them two years.

[00:40:31] Speaker 04:
Well, yes.

[00:40:32] Speaker 04:
I mean, you can always refile too, but that's not the case that's before us.

[00:40:36] Speaker 04:
And suggesting that on reply seems somewhat inappropriate counsel, too late.

[00:40:44] Speaker 02:
Well, we have argued throughout in their complaint that if you don't, if you think we've addressed redressability problem, we can name the third party companies.

[00:40:53] Speaker 04:
Of course you can.

[00:40:54] Speaker 04:
You could have done that in the beginning in the district court and you discussed that.

[00:40:58] Speaker 04:
So what else do you have to respond?

[00:41:02] Speaker 04:
Okay, so there's an argument before the court.

[00:41:07] Speaker 02:
There's some case law from before 2016 that suggests that there is immunity here, but the Simmons case basically acknowledges that that statute all the exceptions to the are prefaced by this chapter does not apply.

[00:41:28] Speaker 02:
Um to the following exceptions.

[00:41:30] Speaker 02:
So if you're in one of those exceptions and the parties here agree that we are the discretionary function one here Um, if you were in one of those exceptions the entire fc ftca including the westfall act doesn't apply so the westfall act does nothing passman versus davis says that uh Immunity for a member of congress is limited There is no sovereign immunity common law sovereign immunity like like you all judges and members of the executive branch have there is none in the

[00:41:58] Speaker 02:
Executive.

[00:41:59] Speaker 06:
That was the reason I asked.

[00:42:01] Speaker 02:
Okay, yeah, thank you, your honor.

[00:42:04] Speaker 02:
So again, if you take away this one basis that the district judge thought we were dead, how do we know he wouldn't let us amend?

[00:42:11] Speaker 02:
We'd asked in our complaint to let us amend, you know, don't dismiss us unless, you know, don't dismiss us.

[00:42:16] Speaker 02:
Let us add the third party companies if that's a problem.

[00:42:19] Speaker 02:
We said that.

[00:42:20] Speaker 02:
We don't want to sue Google if we don't have to.

[00:42:22] Speaker 02:
That obviously would entail difficulties for us.

[00:42:25] Speaker 02:
But the district judge

[00:42:26] Speaker 02:
viewed an immunity problem and a standing problem.

[00:42:30] Speaker 02:
We say the standing problem is curable, and he's wrong about the immunity problem.

[00:42:36] Speaker 02:
Of course, the other side says that he's right about both.

[00:42:39] Speaker 02:
And if the other side is correct about that, then there's no point even arguing about standing because there's immunity.

[00:42:43] Speaker 02:
But if there's no immunity, I believe we ought to be able to correct.

[00:42:47] Speaker 02:
We pled that we wanted to correct if it were necessary.

[00:42:53] Speaker 04:
And actually, if I may, in closing, the Simmons case- We are clear, though, counsel, after the district court ruled, you never filed a motion to amend your complaint in the district court.

[00:43:03] Speaker 02:
It would have been futile, Your Honor, because of the second- Fine.

[00:43:05] Speaker 04:
I asked you yes or no.

[00:43:07] Speaker 02:
Oh, I'm sorry.

[00:43:08] Speaker 02:
I'm having a little difficulty hearing you.

[00:43:10] Speaker 02:
Yes, you are correct.

[00:43:11] Speaker 04:
In the district court, after the district court ruled against you, did you file a motion to reopen, reconsider, and amend your complaint?

[00:43:24] Speaker 02:
Your honor, no, we did not.

[00:43:25] Speaker 02:
And the reason we did not is because it would have been futile.

[00:43:28] Speaker 02:
If it were just about standing, we could have.

[00:43:30] Speaker 02:
But because of the immunity holding, which we disagree with, we needed to bring it here.

[00:43:36] Speaker 02:
And I believe under 28 USC 1653, we could still, it would be unusual, certainly, we could still in this court today, or after I write it, file a motion to amend the complaint.

[00:43:47] Speaker 02:
I'm not saying we should do that, but I do think we could cure the standing problem.

[00:43:52] Speaker 02:
And if we're right about immunity, we'd have a shot here.

[00:43:56] Speaker 02:
We didn't have a shot in district court.

[00:43:59] Speaker 02:
And I do encourage you to invite opposing counsel back to discuss the Simmons and the FTCA and the Westfall Act, because I think those are very important issues, separate and apart from this case.

[00:44:12] Speaker 02:
There are nothing further?

[00:44:14] Speaker 04:
my council if my colleagues have no further questions then thank you council very much we'll take the case under advisement