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On Wednesday, The New York Post published an attention-catching original report: “Smoking-gun email reveals how Hunter Biden introduced Ukrainian businessman to VP dad.” In the previously unreleased email, which was allegedly sent on April 17, 2015, an executive with Burisma, the Ukrainian natural gas company, thanks Hunter Biden for “giving an opportunity” to meet Joe Biden, according to The NY Post.

It’s a story that merits the attention of other journalists, political operatives, national security experts, and also the public at large—not least of all because there are serious questions about its accuracy, reliability, and sourcing. And yet many in the media are choosing not just to ignore the story, but to actively encourage others to suppress any discussion of it.

Indeed, two mainstream reporters who acknowledged (and criticized) the Post‘s scoop—The New York Times‘ Maggie Haberman and Politico’s Jake Sherman—faced thunderous denunciation on Twitter from Democratic partisans simply for discussing the story. Center for American Progress President Neera Tanden accused Haberman of promoting disinformation, and New York Times columnist Michelle Goldberg told Sherman that he was helping nefarious conservative activists “launder this bullshit into the news cycle.” Historian Kevin Kruse asked why they were “amplifying” the story.

Note that both Haberman and Sherman raised serious questions about the veracity of the story, questions that certainly deserve answers. According to The New York Post, the email was obtained from the hard drive of a computer that may or may not have belonged to Hunter Biden. Someone allegedly gave the laptop to a computer repair store owner in Delaware in 2019. The FBI took possession of the laptop in December 2019, according to The New York Post—but not before the store owner copied the hard drive and sent it to former New York Mayor Rudy Giuliani, an attorney for President Donald Trump and a central figure in the Trump-Ukraine-Biden kerfuffle. Former Trump advisor Steve Bannon then learned about the email and contacted The New York Post.

Giuliani and Bannon are political operatives with a long history of shady activity, so the fact that they were the intermediary sources for this story does raise red flags. But that doesn’t mean the story is untrue. For what it’s worth, The New York Post included photographs from the hard drive that allegedly confirms its authenticity. However, even if everything contained within the story turned out to be true, it still would not prove that the sought-after meeting with Joe Biden actually took place. A spokesperson for Biden said on Wednesday that according to Biden’s schedule, he never met with the Burisma official.

This is the work of journalism—to ask questions, to probe, to find and share the truth. Haberman and Sherman were right to let their audiences know that The New York Post story exists, and they were right to challenge it. Many others in the media apparently believe the public cannot be trusted with such a challenging article. They have not merely shamed people for sharing it online, but also want to make it difficult for people to read the report at all.

Facebook Communications Director Andy Stone, a former Democratic staffer, announced that the social media platform would limit the article’s distribution pending a fact-checker’s review. He directed users to Facebook policy, which states that “in many countries, including in the US, if we have signals that a piece of content is false, we temporarily reduce its distribution pending review by a third-party fact-checker.”

While Facebook is within its rights to take action against content it believes is factually misleading, this seems like a tough standard to enforce evenly. News articles in the mainstream press frequently contain information that is thinly or anonymously sourced, and sometimes proves to be inaccurate. It’s one thing for social media platforms to take swift action against viral content that is very obviously false or incendiary, like conspiracy theories about coronavirus miracle cures or voter fraud. It’s quite another for the platform to essentially make itself a gatekeeper of legitimate journalism, or a very selective media watchdog that appears to be more concerned about bad reporting when it comes from right-leaning outlets than left-leaning outlets, given the partisan leanings of social media company’s internal policy setters.

The obvious result will be a double standard, and an unsustainable one: The right will claim (correctly) that social media companies are biased against questionable conservative content, while the left will claim (also correctly) that plenty of misinformation eludes the moderators. Of course, the oft-proposed solution to the problems with platform content curation is to reform or repeal Section 230, which immunizes online platforms from some lawsuits. This idea is popular with everybody from Trump and Biden to Sen. Elizabeth Warren (D–Mass.) and Sen. Josh Hawley (R–Mo.), even though the obvious result of removing tech platform’s liability protection would be even more aggressive moderation. New York Post op-ed editor Sohrab Ahmari tweeted that Facebook’s handling of the Hunter Biden scoop makes the case for modifying Section 230, but without Section 230, Facebook would—for legal reasons—be even more reticent about letting users share unverified claims.

Such an outcome would be bad for a free and open society, for the same reason that it is wrong for the mainstream media to attempt to keep the public wholly ignorant of stories they would rather not tell. The information will get out, and its better for journalists to contextualize—to add to our understanding—rather than pretend it doesn’t exist.

In defending his decision to publish the Steele dossier, which contained unverified, dubious, and speculative information, then-BuzzFeed News Editor in Chief Ben Smith (now a media critic for The New York Times) wrote the following: “You trust us to give you the full story; we trust you to reckon with a messy, sometimes uncertain reality.” That’s a lesson the entire media should take to heart, and apply evenly, no matter the inconvenience of the narrative.

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In a post published yesterday, I explained why Amy Coney Barrett is unlikely to vote to strike down the entire Affordable Care Act in Texas v. California, the case on that subject currently before the Supreme Court. In that post, I also described the background of the case and the issues at stake, in some detail.

Yesterday and today, Judge Barrett answered a number of questions about the ACA at her confirmation hearings. What she said doesn’t definitively tip her hand on how she might vote. But it does further reinforce my impression that she is unlikely to give the plaintiff Republican states and the Trump administration what they want. Most notably, she confirmed that she had voted to strike down the residual individual mandate but also sever it from the rest of the ACA in a recent moot court on the subject:

Supreme Court nominee Amy Coney Barrett said she did not strike down the Affordable Care Act (ACA) but did find its individual mandate unconstitutional in a recent moot court case, while stressing her actions in the moot court case did not actually reflect how she might rule on ObamaCare if confirmed to the high court….

“The vote was, in the panel, the majority said that the mandate was now a penalty and was unconstitutional but severable,” Coney testified in front of the Senate Judiciary Committee, referencing a moot court case she participated in at William & Mary Law School. “I voted to say that it was unconstitutional but severable.”

Barrett stressed that the moot court was just a hypothetical exercise and does not necessarily reflect her actual views of the case. But it is still at least somewhat indicative.

In addition, Barrett repeatedly stressed that the case currently before the Supreme Court comes down to severability, which is a different issue from the constitutionality of the individual health insurance mandate (a question on which she had been critical of Chief Justice Roberts’ 2012 ruling that the mandate should be upheld because it could be interpreted as a tax). This distinction is a crucial one, and Barrett’s emphasis on it further reinforces the view that she is unlikely to strike down the ACA as a whole.

I am far from the only commentator to reach this conclusion about Barrett’s position on the ACA case. Indeed, this seems to be an emerging consensus among experts. Yesterday, prominent liberal constitutional law scholar Eric Segall (who is no fan of Barrett’s) wrote that he “agree[s] with my libertarian friend on this” (the friend in question is me). That is at least somewhat notable, because he and I don’t agree on very many other constitutional law issues.

Earlier today, famed liberal Harvard Law School Professor Laurence Tribe tweeted that “[d]espite the great harm a Justice Coney Barrett will do, I predict she’ll join a 7-2 Supreme Court majority in holding the individual mandate severable from the rest of the ACA, including the protection of preexisting conditions. But she’ll join a 5-4 invalidation of the mandate.” I think the majority in favor of severability might well be even bigger than 7-2, and that the vote on invalidation of the mandate is likely to be 6-3 (with Roberts joining the other conservatives in holding that the residual mandate is now unconstitutional because it can no longer be considered a tax). But Tribe and I agree on the likely outcomes of the two parts of the case.

In my earlier post, I also explained why it’s highly unlikely that the plaintiffs will prevail on severability even if Barrett does vote in favor of their position. At least three of the other conservative justices signaled their hostility to that view in the recent robocall case, decided in June.

In my view a ruling striking down the residual individual mandate would be a significant decision enforcing constitutional limits on federal power. But it will have virtually no effect on the state of the ACA, given that the then-Republican controlled Congress rendered the mandate toothless in 2017. The fate of the ACA is what concerns the vast majority of other people interested in the case. ACA supporters should be happy to know that the law isn’t actually in real peril—at least not from this case.

Co-blogger Jonathan Adler points out that Barrett might potentially recuse herself from participating in the ACA case, because of her earlier involvement in the moot court on the subject. Unlike lower-court judges, Supreme Court justices have near-total discretion over recusal issues. I am skeptical that the moot court creates bias or conflict of interest sufficient to necessitate recusal. But I’m not an expert on recusal ethics, and therefore could be missing something here. If Barrett does recuse, she would, of course, have even less impact on the outcome of the case than I currently expect!

As I have emphasized previously, the history of ACA-related litigation is littered with failed expert predictions, including some of my own. In this instance, however, the evidence of the justices’ attitudes on severability is very strong, and the expert agreement on the subject cuts across ideological lines (which was not true in the debate over  most previous ACA cases).

There are plenty of legitimate reasons to complain about the rushed nature of this confirmation process (I share some of those concerns myself), and also plenty of room for disagreement about Barrett’s jurisprudence (a topic I plan to write more about later this week). But she is unlikely to vote to strike down all of the ACA, and even more unlikely to have a decisive impact on the resolution of that issue.

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In our latest episode I interview David Ignatius about the technology in his latest spy novel, The Paladin. Actually, while we do cover such tech issues as deepfakes, hacking back, Wikileaks, and internet journalism, the interview ranges more widely, from the steel industry of the 1970s, the roots of Donald Trump’s political worldview, and the surprisingly important role played in the Trump-Obama-Russia investigation by one of David Ignatius’s own opinion pieces.

Download the 333rd Episode (mp3)

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed. As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug! Our thanks to Ken Weissman of Weissman Sound Design for the new theme music.

The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets.

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During this morning’s questioning of Supreme Court nominee Amy Coney Barrett, Sen. Lindsey Graham (R–S.C.) asked Barrett whether there was a constitutional right to polygamy.

Barrett didn’t answer because, she explained, “it’s an issue that somebody might litigate before the court at some point.” Graham wasn’t truly trying to pin her down on polygamy. He was actually bringing up Obergefell v. Hodges, the Supreme Court decision from 2015 that mandated the states and the federal government recognize same-sex marriages.

Graham brought up Obergefell because he wanted to discuss how likely it might be that the Supreme Court may reconsider the ruling. Just last week, Justice Clarence Thomas, joined by Justice Samuel Alito, wrote a statement calling on the Supreme Court to take another look at Obergefell to make sure that the court properly protected the right of people to express religious objections to gay marriage.

That’s also not what Graham is after here. He was getting Barrett on the record explaining the circumstances by which the court would revisit Obergefell. He is pointing out that reliance on the decision to determine other cases might prompt the Court to reconsider Obergefell (or Roe v. Wade, or other Supreme Court precedents) if the Court believes that the case was wrongly decided. Barrett agreed that’s how the Court would work, though to be clear, she did not say or agree that Obergefell was decided “wrongly.”

Graham, though, has a bit of an obsession with insisting that same-sex marriage recognition may eventually open the door for legal recognition of polygamous marriages. He previously asked Loretta Lynch during her hearings to be confirmed as attorney general under President Barack Obama what the difference was between legally recognizing same-sex marriage and legally recognizing polygamous marriage.

This morning, Graham’s line of questioning has produced outrage in LGBT quarters that comparing gay marriage equality to polygamy is absurd and homophobic. Here’s the clip of the exchange along with framing by LGBT law nonprofit Lambda Legal that the comparison is uncalled for:

Good morning! @LindseyGrahamSC just conveniently followed up a question about marriage equality with a question about polygamy.

Can't believe we have to say this but we'd like to remind everyone that marriage equality ≠ polygamy.#SCOTUSHearings pic.twitter.com/f5kO34GCv0

— Lambda Legal (@LambdaLegal) October 14, 2020

Here’s a question though: Why are these LGBT or LGBT-friendly voices essentially agreeing with Graham that legal recognition of polygamous relationships is something ultimately bad and unwanted? The Obergefell ruling does, in fact, include a very lengthy analysis and recognition that our country’s legal and social framework for marriage is ever-evolving. Here’s a paragraph from the ruling:

The history of marriage is one of both continuity and change. Changes, such as the decline of arranged marriages and the abandonment of the law of coverture, have worked deep transformations in the structure of marriage, affecting aspects of marriage once viewed as essential. These new insights have strengthened, not weakened, the institution. Changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations.

The decision makes it clear that the court believes “The right to marry is a fundamental right inherent in the liberty of the person,” and while the ruling itself is entirely focused on couples, there is nothing about the ruling that suggests its logic wouldn’t apply to polygamous relationships, which Chief Justice John Roberts noted in his dissent.

So Graham’s fears actually do have a foundation in the Obergefell ruling, which states that our country’s concept of marriage evolves over time. But why are people treating Graham’s framing as though it’s something we should all be afraid of and resist? At one point, the idea that the government would recognize same-sex marriage was absurd. Then it was something to organize and fight against. And now, for most Americans, it’s uncontroversial.

If two men want to get married, it’s no big deal. If three men want to get married, then… what’s the big deal? A significant amount of perception and analysis of polygamy is based on stereotypes of religious cult groups with one powerful patriarch having many wives. But that’s just one framework and not the entire story of polygamy or polyamory.

Organizations like Lambda Legal can and should oppose Graham’s fearmongering about the Obergefell decision, but they should also consider whether they are themselves embracing a stereotype that polygamous relationships are or should be treated illegitimately under the law. There are LGBT people who also pursue them, after all, not just straight men looking to control women.

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