Penn Carey Law faculty react to SCOTUS ruling on immunity, social media content

University of Pennsylvania’s Carey Law School professors share their reaction to two Supreme Court decisions delivered on the final day of the 2023-2024 term—presidential immunity and social media content.

In Trump v. United States, the Supreme Court has held that a former President is entitled “to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority. And he is entitled to at least presumptive immunity from prosecution for all his official acts. There is no immunity for unofficial acts.”

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“SCOTUS’ immunity decision will in time rank as among the Court’s worst decisions in its many year history—along with Dred Scott, Korematsu, and Lochner,” says Claire O. Finkelstein, Algernon Biddle Professor of Law and Professor of Philosophy. “Any U.S. president can now violate the law to remain in power as long as he cloaks it in the trappings of his office.”

Cary Coglianese, the the Edward B. Shils Professor of Law and Professor of Political Science and director of the Penn Program on Regulation, says, “the Supreme Court’s decision in Trump v. United States marks a tragic departure from the prevailing principle of a ‘government of laws, not of men’ that has long formed the foundation of governing power in the United States. The justices in the majority have gone beyond what was needed to resolve the precise matter before them to create a murky structure that will only complicate what has until now been the clear principle that ‘no person is above the law.’”

In Moody v. NetChoice, the Supreme Court vacated the lower court judgments and remanded the cases “because neither the Eleventh Circuit nor the Fifth Circuit conducted a proper analysis of the facial First Amendment challenges to the Florida and Texas laws regulating large internet platforms.”

“Today’s NetChoice opinion is a bumpy win for the application of First Amendment principles to the Internet,” says Gus Hurwitz, senior fellow and academic director of the Center for Technology, Innovation & Competition. “At oral arguments, the Justices were clearly frustrated that this case came to them as a facial challenge, and that frustration frames the opinion, with all nine justices agreeing to vacate both opinions below and to send them back to be more fully developed. But a six-Justice majority also offers a substantive discussion of the limited facts that were before the Court and the relevant law, offering a rebuke of the Fifth Circuit opinion below and stating that the underlying Texas law does regulate speech.”

Read more about the rulings on immunity and social media at Penn Carey Law.