>> Ted: COMING UP NEXT ON"ARIZONA HORIZON," IT'S OUR ANNUAL U.S. SUPREME COURT PREVIEW.

SOME OF THE MORE NOTEWORTHY CASES.

OUR SUPREME COURT NEXT ON THIS SPECIAL EDITION OF "ARIZONA HORIZON."

>> WELCOME TO ARIZONA HORIZON.

I'M TED SIMONS.

THE SUPREME COURT SESSION IS UNDERWAY AND THAT MEANS IT'S TIME FOR OUR PREVIEW AND WE LOOK AT THE BIGGER CASES THE COURT WILL BE TAKING UP ALONG WITH ANALYSIS INCLUDING THE HIGHEST COURT.

JOINING US IS LAW PROFESSOR, PAUL BENDER AND STEPHEN MONTOYA FROM MONTOYA, LUCERO AND PASTOR.

I LOVE DOING THIS AND COULD DO THIS FOR AN OUR OR TWO HOURS.

PAUL, WE'LL START WITH, LOOKING THINGS OVER AND MAYBE NOT SO MANY BLOCK BUSTER CASES LAST SESSION?

>> AS FAR AS I CAN TELL NOW, NO BLOCK BUSTERS.

SOMETIMES THEY OVERRULE CASES WHEN IT WASN'T EVEN ARGUED.

AS OF NOW, THERE'S REALLY NOTHING THAT THEY'RE GOING TO HEAR THAT THEY ALREADY HEARD, WHICH IS ANYTHING LIKE ROE V. WADE OR THE AFFIRMATIVE ACTION CASE.

THAT MAY BE DELIBERATE.

SO MUCH CONTROVERSY AROUND THE COURT THAT IT WOULDN'T SURPRISE ME IF THEY WERE SLOW TO TAKE BIG CONTROVERSIAL CASES FOR AWHILE.

>> Ted: THAT'S AN INTERESTING POINT, STEPHEN AND SOUNDEDS SOUNDS LIKE THE COURT MAY NEED AN BREATH.

THERE WE CAN ONLY HOPE.

WHAT DID THE CHINESE SAY, IT'S A CURSE TO BE BORN IN INTERESTING TIMES.

WE MAY NOT GET IT THOUGH, A POTENTIAL FOR BLOCK BUSTERS.

>> Ted: LET'S TALK ABOUT THE COURT'S REPUTATION AND AGAIN, IS THIS A GOOD THING WITH POTENTIALLY NO BLOCK BUSTER CASES IN REHABBING THE COURT'S REPUTATION OR DOES THE COURT NEED REHABBING?

>> THE COURT DOES KNEE NEED REHABBING.

I'M REALLY DISAPPOINTED, ESPECIALLY WITH THE CHIEF JUSTICE.

HE JUST SEEMS TO THINK EVERYTHING IS FINE AND THERE'S NOTHING FOR THE COURT TO WORRY ABOUT.

THERE'S A LOT FOR THE COURT TO WORRY ABOUT.

THEY'VE MASSIVE REGULARITIES AND APPEARANCE OF UMPROPRIETY IS ALL OVER THE PLACE WITH JUSTICE THOMAS AND EVEN WITH A COUPLE OF THE OTHERS.

THAT DOESN'T MEAN -- I DON'T THINK JUSTICE THOMAS CHANGED HIS VOTE IN ANY CASE BECAUSE OF FINANCIAL SUPPORT HE'S GOTTEN FROM PEOPLE.

THAT DOESN'T MATTER.

IT DOESN'T LOOK GOOD AND THE COURT REALLY NEEDS TO STAY AWAY FROM THAT AND WHY THEY'RE SO RELUCTANT TO SET UP THEIR OWN CODE OF ETHICS WHEN THEY SHOULD RECUSE THEMSELVES, I DON'T KNOW AND ROBERTS DOESN'T WANT TO DO THAT.

>> Ted: WHAT DO YOU THINK, STEPHEN AS FAR AS THE COURT'S REPUTATION AND HOW MUCH REHAB IS NEEDED?

>> I AGREE WITH THE STATUSICIANS THAT THE COURT IS AT ALL AN-TIME LOW AND REHABILITATION IS NEEDED.

I THINK MORE THAN REHABILITATION IS NEEDED.

I THINK AN INTERVENTION IS NEEDED.

AND YOU REALLY WISH THAT CONGRESS WOULD PASS A LAW DEPRIVING THE COURT OF JURISDICTION IN ANY CASE IN WHICH A MEMBER OF THE COURT HAD A CONFLICT OF INTEREST UNDER THE CODE OF JUDICIAL CONDUCT THAT BINDS ALL OTHER FEDERAL JUDGES AND UNLESS THE COURT SUBSTITUTES THE CONFLICTING MEMBER WITH A MEMBER OF UNITED STATES' COURT OF APPEALS.

THAT WOULD SOLVE THE PROBLEM AND YOU THINK THAT CONGRESS DOES HAVE THE JURISDICTION TO DO THAT AND I REALLY DO THINK CONGRESS SHOULD DO SOMETHING RADICAL BECAUSE THE COURT'S FAILURE TO DO ANYTHING BY ITSELF IS BRAZEN.

>> Ted: WHAT DO YOU THINK, PAUL?

>> I THINK AS STEVE POINTED OUT IN ONE OF THE BIG PROBLEMS AND THAT IS ON THE COURT OF APPEALS, WHEN A COURT OF APPEAL'S JUDGE RECUSES HIMSELF, YOU CAN'T DO THAT.

MAYBE IF CONGRESS SAID YOU COULD DO IT, IT WOULD PASS, BUT YOU DON'T THINK SO.

I THINK THE SUPREME COURT CAN'T PARTICIPATE IN BUT ANYBODY BUT SUPREME COURT MEMBERS.

THAT'S ONE OF THE COURT'S EXCUSES FOR NOT RECUSING THEMSELVES AS QUICKLY AS OFTEN AS YOU THINK THEY MIGHT.

THERE'S NINE PEOPLE AND IF ONE RECUSES THEMSELVES, IT'S EIGHT PEOPLE.

THERE'S A 4-4 DECISION WHICH LEAVES THE DECISION AND THE COURT CAN'T DECIDE BECAUSE IT'S AN EQUALLY DIVIDED COURT.

SO THE COURT IS RELUCTANT TO RECUSE THEMSELVES, BUT YOU THINK THEY'RE TOO RELUCTANT.

IT'S THE MONEY.

SO MANY OF THEM SEEM TO BE INTERESTED IN MAKING MONEY OUTSIDE OF THE COURT.

WHAT DO THEY DO WITH THEIR SUMMERS?

>> THEY TEACH IN VARIOUS PLACES.

NICE VACATIONS, I SUPPOSE, BUT IN THE OLD DAYS, THE COURT WOULD STAY AROUND AND WORK ONLY THINGS.

THIS COURT IS VERY MUCH INTO PUBLICITY AND MAKE SPEECHES ABOUT PUBLIC ISSUES.

THE AMERICAN CONSTITUTION SOCIETY, THOSE ARE NOT NEUTRAL GROUPS AND SHOULDN'T BE DOING THAT.

THEY SHOULD SPEND THEIR TIME ON THEIR WORK, MAKING THEIR OPINIONS AS HARDWOOD GOOD AS THEY CAN MAKE THEM OR STAY AWAY FROM THINGS.

THEY HAVE ENOUGH TO DO WITH THE CASES ON THEIR DOCKET.

THEY DON'T NEED TO PARTICIPATE IF PUBLIC AFFAIRS.

>> I HAVE A SOLUTION TO THE RECUSAL PROBLEM, INCREASE THE SIZE OF THE COURT TO 11 OR 13 AND A MISSING JUSTICE WILL BE A BIG DEAL.

>> Ted: 13 AND YOU MISS A JUSTICE, IT'S 12 AND 11 AND IT'S NOW TEN.

>> BUT STILL ENOUGH TO TO DO THE JOB.

AND IN A LOT OF CASES, I DON'T THINK IT MATTERS.

>> Ted: PAUL, LET'S START WITH YOU ON THE SECOND AMENDMENT CHALLENGE REGARDING THE OWNING AND POSSESSING OF GUNS.

YOU SAID IT, OUTLINING TEA THESE CASES AND WHAT IS THIS ALL ABOUT?

>> LAST YEAR, THE YEAR BEFORE, WHICH I JUST FOUND AN ABSURD DECISION ABOUT THE MEANING OF THE SECOND AMENDMENT.

THE FIRST AMENDMENT, THE SECOND AMENDMENT, FREE SPEECH, HOW DO YOU SIDE THOSEDOYOU DECIDE THOSE CASES?

WHAT WAS THE CASE IN 1789 AND ONLY THEN WOULD A PERSON HAVE A CONSTITUTIONAL ROUTE TO SAY RIGHT TO SAY THAT?

NO.

IN GENERAL, INDIVIDUAL RIGHTS ARE SUBJECT TO REENTER REINTERPRETATION BY THE COURT.

NEW YORK LAW SAID THE ONLY TIME YOU CAN INTERFERE WITH THE RIGHT TO BEAR ARMS IS IF THE INTERFERENCE LIKE SOMETHING HISTORICAL.

IF THERE'S SOME HISTORICAL PRECEDENT OF THAT INTERFERENCE.

IF YOU CAN'T FIND HISTORY, CONGRESS CAN'T DO IT.

NO MATTER WHAT THE NEED IS.

POUT ININ THIS CASE, THEY DISQUALIFIED PEOPLE FROM HAVING GUNS WHO HAD PROTECTIVE ORDERS ISSUED AGAIN AGAINST THEM AND PEOPLE WOULD HAVE GUNS AND THREATEN THEIR SPOUSES AND THE SPOUSE CAN BRING A MOTION OR PROTECTIVE ORDER AGAINST THE SPOUSE.

WHEN THAT HAPPENS, THE SPOUSE WHO HAS THE PROTECTIVE ORDER ENTERED AGAINST HIM DOES NOT HAVE THE RIGHT TO BEAR ARMS.

NOW YOU WOULD THINK THE QUESTION IS, OK, THERE'S A CONSTITUTIONAL ROUTE TO HAVE GUNS AND IF SOMEBODY SHOWS THEY'RE DANGEROUS BECAUSE THERE'S A PROTECTIVE ORDER, IS THAT ENOUGH OF A REASON TO STOP THEM FROM HAVING GUNS?

YOU COULD ARGUE BOTH WAYS ABOUT THAT.

BUT THAT'S A QUESTION YOU DECIDE TODAY, UNDER TODAY'S CONDITIONS.

INSTEAD, THE COURT IN THIS CASE SAID NO, CONGRESS CAN ONLY INTERFERE WITH IT RIGHT TO BEAR ARMS IF THEY CAN SHOW SOME HISTORICAL PRECEDENT FOR THE INTERFERENCE.

IF IT'S SOMETHING THEY'VE NEVER DONE BEFORE, THEY CAN'T DO IT.

THAT'S JUST AN ABSURD WAY OF INTERPRETING THE CONSTITUTION.

NOW IT'S BACK HERE AND YOU WOULD THINK A STATUTE SOMEBODY THREATENS THEIR SPOUSE WITH A GUN, IT WOULD BE SAID NOT TO HAVE A CONSTITUTIONAL RIGHT.

WE DON'T CARE ABOUT THAT.

CAN WE FIND IN THE HISTORY ANYTIME THAT CONGRESS HAS DONE THIS BEFORE?

IF WE CAN'T, WE CAN'T DO IT NOW.

THAT'S NOT THE WAY TO DETERMINE CONSTITUTIONAL RIGHTS, TO FREEZE THEM IN 1789 OR 1860.

>> Ted: IS THIS BACK TO ORIGINAL INTENT DISCUSSIONS HERE?

>> IT IS.

WHAT'S GOOD ABOUT THIS CASE, IT SHOWS THE ABSURDITY OF THE ORIGINAL INTENT.

THE ORIGINAL INTENT IS NOT ABSURD.

YOU THINK PAUL WOULD ACKNOWLEDGE WE ALL WANT TO KNOW WHAT THE ORIGINAL INTENT WAS AND IT'S NOT THE FINAL ANSWER.

THIS IS A CASE THAT DEMONSTRATES THAT.

WHEN THE CONSTITUTION WAS RATIFIED -- OR THE BULL OF BILL OF RIGHTS WAS RAT RATIFIED IN 1871, DOMESTIC VIOLENCE WAS NOT A CRIME AND THERE WAS NOTHING AKIN TO A DOMESTIC VIOLENCE RESTRAINING ORDER.

SO JAMES MADISON DIDN'T THINK ABOUT THESE ISSUES.

SO THE ORIGINAL INTENT DOESN'T APPLY.

HOWEVER, WHAT DOES APPLY IS IN THE FOUNDING AREA, CRAZY PEOPLE COULDN'T HAVE GUNS.

IN FACT, IN A LOT OF THE COLONIES OF THE CONSTITUTIONAL ERA, YOU COULDN'T CARRY A GUN IN PUBLIC IN CERTAIN AREAS.

IT WAS CONSIDERED INTIMIDATING.

SO THIS SHOWS THE LIMITS AND YOU THINK THE COURT WILL USE THIS AS A VEHICLE TO IMPOSE LIMITS AND TO DRAW BACK ON THE BRUIN CASE OF LAST TERM.

>> Ted: A NARROW DECISION?

>> I THINK IT'S GOING TO BE A NARROW DECISION BUT IN THIS CASE, THERE'S CLEARLY A -- DANGER.

DANGER.

SHOT AT A WITNESS TO A CRIME PERPETRATED AND THEY HAVE THE RIGHT TO BEAR ARMS.

>> Ted: LAST POINT ON THIS, PAUL?

>> I AGREE THIS WOULD BE A WONDERFUL THING TO MAP HAPPEN, BUT THAT WOULD BE CHANGING THE DECISION THAT THEY COULDN'T DO ANYTHING TO LIMIT GUNS UNLESS THERE'S A HISTORICAL PRECEDENT FOR IT.

THAT'S WRONG.

THE GOVERNMENT IN ARGUING THIS CASE HAS INTRUDE TO DEAL WITH THAT AND TRIED TO CONVINCE THE COURT THERE'S PRECEDENT FOR THIS.

BUT THE WHOLE EFFORT IS WRONG.

THE QUESTION SHOULDN'T BE, DO THEY HAVE POWER TO LIMIT THEM THAT WAY 200 YEARS AGO?

THE QUESTION IS, DO THEY HAVE POWER TODAY AND THE COURT HAS TO BALANCE THE DANGERS AGAINST THE LIBERTIES.

THIS COURT SEEMS UNWILLING TO DO THAT IN AN INCREASING NUMBER OF AREAS AND GUNS ARE THE WORST.

THEY'RE NOT FROZEN HISTORICALLY.

THE ORIGINAL INTENTION IS IMPORTANT AND THE QUESTION, ORIGINAL INTENTION FOR WHAT?

THE ORIGINAL INTENTION THAT IT'S IMPORTANT IS THE ORIGINAL INTENTION OF THE PRINCIPAL OF THE CONTUSION, NOT THE PARTICULAR WAY THE PRINCIPAL BROUGHTED AT THE TIME THE CONSTITUTION WAS DRAFTED.

THE CONSTITUTION DOESN'T HAVE A BUNCH OF LITTLE RULES TO DO THIS OR THAT.

IT SAYS FREE SPEECH AND THAT'S A BROAD CONCEPT WHICH CAN CHANGE MEANING AS TIME GOES ON.

THE IMPORTANT THING IS THAT THE ORIGINAL INTENTION IS TO HAVE A PROTECTION FOR FREE SPEECH.

AS TIME GOES ON, WHAT THAT PROTECTION SHOULD BE WILL CHANGE.

THEY SAY IT'S BALANCING.

THEY DON'T WANT TO DO ANY BALANCING.

WELL WHAT THE HELL ARE THEY THERE FOR TO DO BALANCING OF RIGHTS AGAINST RESPONSIBILITY AND NEEDS AND GOVERNMENT?

THEY WANT TO DECIDE THESE CASES LOOKING AT HISTORY.

>> Ted: FIRST ABORTION CASE, REALLY, AND A COURT ORDER RESTRICTION OF MIFEPRISTONE AND RESPONSIBLE FOR MOST ABORTIONS IN THE U.S. >> ABOUT 50%.

>> Ted: TALK TO US ABOUT THIS CASE.

>> AS PAUL POINTED OUT IN THE PRESHOW DISCUSSION, THE COURT HAS CONSIDERED IT THREE TIMES BECAUSE THE FEDERAL DISTRICT JUDGE IN TEXAS WHERE THIS CASE WAS BROUGHT ON PURPOSE BECAUSE THEY GO TO THE SAME JUDGE IN THE SAME TEXAS DISTRICT WHERE THEY KNOW THEY'RE GOING TO GET A GOOD RESULT.

ACTUALLY ENJOINED IT UNDER THE DOBBOB'S CASE.

SO THIS IS ILLEGAL.

AND THE FIFTH CIRCUIT AFFIRMED IN PART AND THAT WENT TO THE SUPREME COURT ONCE.

THE SUPREME COURT NARROWED THE UN-JUNCTION.

THE INJUNCTION.

IT'S STILL WORKING ITS WAY UP THE MERITS VIA CERTERARY.

I.

>> Ted: I THOUGHT IT WAS SAFETY CONCERNS WITH MIFEPRISTONE.

>> THEY HAVE STANDING TO CHALLENGE OF WHAT THE GOVERNMENT IS DOING.

WHAT DOCTOR HAS CHALLENGED IT?

THESE DOCTORS SAY THEY'RE AGAINST ABORTION AND IF PEOPLE STARTED USING MIFEPRISTONE, THEN SOME WOMEN WILL GET IN TROUBLE, WHICH IS TRUE.

AND THEN THESE DOCTORS MAY GET INVOLVED AND THEY'RE STANDING IS, THEY DON'T WANT TO BE BOTHERED BY THE FACT THAT OTHER PEOPLE ARE ASKING THIS DRUG.

IT'S A WEEK STANDING ARGUMENT AND MAYBE THAT'S THE REASON THE COURT IS HAVING TROUBLE DECIDING IT.

IT'S SOMETHING, I THINK, SHOULD BE DECIDED.

THE BASIC QUESTION IS WHETHER THE F.D.A.

SHOULD HAVE APPROVED THIS DRUG.

FI'M NOT HIRE HIRE THERE'S.THE ANTI-OFF PORTION MOVEMENT WANTS TO STOP ABORTION EVEN STATES THAT WANT TO PERMIT ABORTION.

THIS DRUG IS A POPULAR WAY OF DOING ABORTIONS NOW.

YOUDA NEEDYOU DON'T NEED A PRESCRIPTION AND YOU CAN CHECK WITH YOUR DOCTOR AND MAKES IT A LOT EASIER.

PEOPLE WHO ARE AGAINST ABORTION ARE AGAINST THIS DRUG AND DOING EVERYTHING THEY CAN TO STOP IT.

WHAT THEY'RE DOING IS CHALLENGING THE ADMINISTRATIVE PROCESS BY WHICH THE AGENCY APPROVED THE DRUG AND YOU THINK THAT ISSUE WILL COME TO THE COURT.

BUT WHETHER IN THIS CASE OR NOT, WE CAN'T TELL.

>> Ted: STEPHEN, IF THE COURT TAKES THIS UP, WHAT WILL HAPPEN?

>> YOU DON'T KNOW.

I DON'T KNOW.

BECAUSE CAVANAGH AND ROBERTS I DON'T THINK WILL WANT TO INTERFERE WITH THE DISTRIBUTION OF THIS MEDICINE.

AND IN FACT, CAVANAGH IN HIS CONRURENC IN THE DOBB'S CASE, THE ISSUE AROSE, CAN SOMEONE IN TEXAS GO TO NEW MEXICO AND GET AN ABORTION AND BE PROSECUTED WHEN THEY COME BACK TO TEXAS?

CAVANAGH SPECULATED NO.

WHAT WILL THIS DO WITH OUR MALES AND INTERSTATE COMMUNICATION?

IT'S A TOUGH CASE.

AND MOREOVER, POLITICALLY, AS YOU KNOW, THE CENTER REPUBLICANS ARE TURNING AGAINST THIS.

AND THE COURT IS VERY SENSITIVE TO POLITICS.

SO I DON'T KNOW WHAT THEY'RE GOING TO DO.

IT'S A MESS.

>> Ted: IT SOUNDS LIKE A MESS.

PAUL, SOMETHING THAT SOUNDS LIKE A MESS IN TERMS OF WHAT'S GOING ON HERE INVOLVES CONSUMER FINANCE, PROTECTION AGENCY, HOW IT'S FUNDED AND WHAT'S GOING ON HERE?

>> THE ISSUE IN THIS CASE THE CONSUMER FINANCIAL BUREAU CASE, THERE ARE A LOT OF PEOPLE THAT DON'T LIKE THE AGENCY AND TRYING TO GET RID OF IT.

THE WAY THE LOWER COURT WAS TRYING TO GET RID OF IT WAS TO SAY THAT THE APPROPRIATION FOR THE AGENCY IS UNCONSTITUTIONAL BECAUSE THE CONSTITUTION SAYS NO MONEY SHALL BE DRAWN FROM THE TREASURY BUT IN CONSEQUENCE MADE BY LAW.

IT'S ONLY SO IF IT SAYS HOW MUCH SHOULD BE SPENT MORE OR LESS ACCURATELY.

WHAT CONGRESS SAYS IS UP TO $600 MILLION AND LEAVES IT UP TO THE AGENCY HOW MUCH TO DO UP TO THAT AMOUNT.

THE ARGUMENT HERE AND THE LOWER COURT HELD, THAT'S UNCONSTITUTIONAL.

THAT THE APPROPRIATION CLAUSE MEANS THE DECISION HOW MUCH TO APPROPRIATE HAS TO BE MADE BY CONGRESS.

IT'S NOT CONSTITUTIONAL FOR CONGRESS TO SAY THE AGENCY CAN SAY WHATEVER THEY WANT OR TAKE AS MUCH AS THEY WANT UP TO A CERTAIN AMOUNT.

IF THAT'S TRUE, VIRTUALLY ALL APPROPRIATIONS ARE UNCONSTITUTIONAL.

YOU THINK CONGRESS WOULD DO ANYTHING THESE DAYS AND TO SIT AND DECIDE ABOUT EACH APPROPRIATION AND HOW MUCH IT SHOULD BE, THAT MAKES NO SENSE.

SO I DON'T THINK THAT WILL WORK IN THIS CASE.

IF IT DID WORK, IT WOULD THROW A REAL MONKEY WRENCHER INTO THE SYSTEM.

>> Ted: WHAT DO YOU MAKE OF THIS, STEPHEN?

>> I THINK THE ENEMIES OF THE ADMINISTRATIVE STATE HATE THIS BUREAU AND THE FINANCIAL INDUSTRY HATES THIS BAUER.

BUREAU.

INTERESTINGLY, THIS BUREAU COLLECTED $12 MILLION WITH 29 CONSUMERS SINCE INSENSE INCEPTION IN THE OBAMA ADMINISTRATION.

IT'S NOT SUBJECT TO THE ANNUAL APPROPRIATION.

BUT NEITHER IS THE POST OFFICE.

NEITHER IS THE FEDERAL RESERVE ITSELF.

THIS IS ACTUALLY A CHILD TO THE FEDERAL RESERVE AND TOOK OVER A LOT OF FEDERAL RESERVE DUTIES REGARDING UNFAIR CONSUMER LENDING.

I AGREE WITH PAUL, IF THIS GOES DOWN, A LOT OF OTHER ADMINISTRATIVE AGENCIES ARE ALSO ON THE CHOPPING BLOCK.

>> Ted: BUT IS THE COURT READY TO THROW BABY OUT WITH BATHWATER?

>> I DON'T THINK SO.

I DON'T THINK BARRETT, CAVANAGH OR ROBERTS WILL GO FOR IT, EVEN THOUGH ROBERTS DID EXPRESS HOSTILITY FOR IT DURING ORAL ARGUMENT.

ROBERTS IS A SMART GUY AND I DON'T THINK HE'LL DO IT.

>> Ted: WHAT DO YOU THINK, PAUL?

>> I AGREE WITH STEVE COMPLETELY.

THE ORAL ARGUMENT MADE ME FEEL SAFE THAT THE COURT WON'T ACCEPT THIS.

THEY'RE TRYING TO TAKE SOMETHING IN THE CONSTITUTION.

IT'S THERE FOR A REASON.

MONEY GETS SPENT ONLY WHEN CONGRESS PERMITS IT TO BE SPENT BUT DOESN'T SAY HOW CONGRESS HAS TO DO THAT.

WHAT THIS COURT WANTS TO SAY, CONGRESS HAS TO DECIDE SO MUCH FOR THIS AND THAT AND HOW THE HELL WILL THEY DO THAT IN THEY THEY WANT TO LEAVE IT TO THE UPPER AGENCY OR IT'S REVOLUTIONSARY.

I AGREE WITH STEVE.

I DON'T THINK THE COURT IS READY TO DO THAT.

>> Ted: STEVE, WESTEVE, WESTEVE, WE HAVE A BUNCH OF SOCIAL MEDIA CASES AND WHETHER PUBLIC OFFICIALS CAN BLOCK PEOPLE ON SOCIAL MEDIA.

GIVE US AN OVERVIEW OF WHAT THE COURT WILL BE LOOKING AT.

>> ONE IS FROM THE LIBERAL NINTH CIRCUIT OF THE WEST COAST AND THE OTHER ONE IS FROM THE MORE CONSERVATIVE CIRCUIT, THE SIXTH CIRCUIT.

THE NINTH CIRCUIT SAYS IF YOU'RE A PUBLIC OFFICIAL WITH A FACEBOOK PAGE AND YOU'RE PROCLAIMING YOU'RE A PUBLIC OFFICIAL AND YOU'RE ACTUALLY TAKING MESSAGES FROM CONSTITUENTS AND RESPONDING TO THEM AND GIVING THEM PUBLIC OFFICIAL-RELATED ADVICE, YOU CAN'T BLOCK PEOPLE BECAUSE THEY'RE A STAID ACTION AND THAT'S A VIOLATION OF THE FIRST AMENDMENT.

ON THE OTHER HAND, THE SIXTH AMENDMENT SAYS IT'S NOT YOUR GOVERNMENT FACEBOOK PAGE, SO BECAUSE IT IS YOUR PERSONAL AND EVEN THOUGH YOU ARE DOING SOME GOVERNMENT COMMUNICATIONS ON IT, BECAUSE FROM ITS INCEPTION, IT WAS PERSONAL.

THERE IS NO STATE ACTION AND YOU CAN BLOCK WHOEVER YOU WANT.

THERE'S A CIRCUIT SPLIT.

WHATSPLIT.WHAT IS THE COURT GOING DO?

I DON'T KNOW.

THAT'S A TOUGH ONE.

I PERSONALLY BELIEVE IF YOU APPLY TRADITIONAL SECTION 1983 LAW, THE SUFFICIENTLY CIVIL RIGHT'S LAW THAT FORCES GOVERNMENT ENTITIES TO FOLLOW THE FIRST AMENDMENT, ARE THEY ACTING UNDER COLOR OF STATE LAW?

I THINK THEY ARE WHEN THEY'RE TALKING ABOUT OFFICIAL BUSINESS, WHEN THEY'RE GIVING OFFICIAL ADVICE, WHEN THEY'RE PROCLAIMING THAT THEY'RE OFFICIAL GOVERNMENT ACTORS TRYING TO HELP YOU GOVERNMENT PROBLEMS THROUGH YOUR PRIVATE FEIGN.

FACEBOOK PAGE.

I THINK THERE'S A STRONG ARGUMENT THAT IF YOU WANT A PERSONAL FACEBOOK PAGE, KEEP IT PERSONAL AND NOT PUBLIC.

DON'T RESPOND TO CONCERNS FROM THE PUBLIC ON IT.

>> Ted: PAUL, SOCIAL MEDIA, PUBLIC POLICY, WHAT'S DOING ON GOING ON HERE?

>> PEOPLE, WHEN THEY RUN FOR OFFICE, THEY GET AN ACCOUNT AND THEY COMMUNICATE WITH PEOPLE THAT WAY.

THEY GET NOTICES, THEY APPOINT PEOPLE THAT WAY.

IN OTHER WORDS, THEY USE THEM AS PART OF THEIR JOB AS A PUBLIC OFFICIAL.

SO IT'S GOT TO BE COVERED BY THE FIRST AMENDMENT.

OTHERWISE, WHAT YOU HAVE IS, THEY'RE RUNNING A DISCUSSION ABOUT WHAT THEY'RE DOING AND SOME DON'T LIKE WHAT THEY'RE DOING AND EXCLUDE THEM FROM THE DISCUSSION.

THE DISCUSSION GOES ON WITH EVERYBODY ELSE AND THESE PEOPLE WANT TO PARTICIPATE CAN'T PARTICIPATE BECAUSE OF THE DISCUSSION IS ON SOCIAL MEDIA, NOT ON SOME GOVERNMENTAL AGENCY.

THE COURT HAS BEEN GOOD OF COURSE PANDING THEGOOD ATEXPANDING.

>> Ted: PAUL, MAKE THIS QUICK, AS FAR AS THE SOCIAL MEDIA COMPANIES, DO THEY HAVE TO PUBLISH THINGS THAT THEY DISAGREE WITH?

>> NO, THE SOCIAL MEDIA COMPANIES DON'T.

UNLESS DEGREE SAYS OTHERWISE.

I THINK CONGRESS WOULD HAVE POWER GIVEN THEIR INFLUENCE IN THE COMMUNITY TO PUT THAT RESPONSIBILITY ON THEM.

I DON'T THINK IT'S DONE THAT YET.

SO UNDER THE CONSTITUTION, NO, PRIVATE SOCIAL MEDIA DOESN'T HAVE TO PUBLISH ANYTHING.

THE CASE WE'RE TALKING ABOUT IS DIFFERENT.

CASES WHERE THE SOCIAL MEDIA COMPANIES ARE USED BY PUBLIC OFFICIALS TO HAVE PUBLIC DISCUSSIONS AND THE PUBLIC OFFICIALS DON'T WANT SOME PEOPLE IN THE PUBLIC DISCUSSIONS BECAUSE THEY DISAGREE WITH THEM AND THEY WANT TO EXCLUDE THEM.

>> EXCEPT FOR THE FIFTH CIRCUIT, THAT THE SOCIAL MEDIA COMPANIES HAVE TO PUBLISH EVERYTHING EVEN IF THEY DISAGREE.

I DEWI DON'T THINK THEY HAVE TO AND I DON'T THINK CONGRESS CAN FORCE THEM TO.

THE "NEW YORK TIMES" IS BIG, TOO, AND THEYTA THEY DON'T HAVE TO PUBLISH EVERYTHING.

>> Ted: SOUNDS LIKE POTENTIALLY NO HUMUNGOUS BLOCK BUSTER CASES AND GOOD TO HAVE YOU BOTH.

THANK YOU FOR YOUR ANALYSIS AND EXPERTISE.

I LOVED THIS SHOW.

THAT'S IT FOR NOW.

I'M TED SIMONS.

THANK YOU FOR JOINING US AND YOU HAVE A GREAT EVENING.