Netchoice Case Update: Oral Argument Edition
Earlier this week, the Supreme Court heard oral arguments in NetChoice v. Paxton and Moody v. NetChoice, cases challenging Florida and Texas state laws barring major social media firms from using most types of content moderation, thereby requiring them to host content they disapprove of. The oral arguments suggest a clear majority of the justices believe these laws violate the First Amendment rights of social media providers. They seemed especially skeptical of the government’s desire to force traditional social media sites like Facebook and Twitter to change their moderation practices and disseminate speech they want to exclude.
Last week I released an episode that provided a deep dive into the facts and background of these cases, as well as walking through their procedural history to present the information in a way that will be equally helpful to lawyers and non lawyers alike. That episode will be linked on the show notes page for this episode.
Today we will be doing the same deal with the oral arguments that the court heard earlier this week. I’ve pulled together a comprehensive picture of the information presented and the key moments from the four hours of oral arguments. And I will conclude with a summary of the possible outcomes as well as my professional opinion of the most likely outcome in a case that, regardless how it’s decided, will be a landmark in first amendment jurisprudence.
The first thing that really stuck out to me about this session of oral arguments had to do with the questions presented. In my previous video on this case we went over the two QP’s the court had granted review on:
1. Whether the First Amendment prohibits a State from requiring that social-media companies host third-party communications, and from regulating the time, place, and manner in which they do so.
2. Whether the First Amendment prohibits a State from requiring social-media companies to notify and provide an explanation to their users when they censor the user’s speech.1
They never actually got around to the second question presented at any point during either session. This was essentially a four hour discussion on the issue of content moderation from the first QP. Which I realize may sound boring, but it was anything but.
I know there’s a lot of law school students who listen to this show and if you’re interested in First amendment jurisprudence or are interested in becoming a litigator you should listen to these arguments. They get into so many of the foundational 1L first amendment cases. Tornillo, Hurley, Minneapolis Star, PG&E, Salerno, Buckley v Valeo.
Furthermore, Paul Clement who (as I have mentioned before, I am a big fan of) was there litigating both cases on behalf of Netchoice. His arguments here were demonstrative of the fact that this guy really is the most talented litigator in the whole of the Supreme Court BAR.
This case was just about as perfect of an on-the-nose circuit split as you could get. It’s really quite incredible when you think about it. If you wrote this up as a hypothetical civil procedure case it would strain credulity. People would be asking “how could something like that even happen?”
Moody v Netchoice – Opening Arguments
Let’s start by looking at the arguments being made by the involved parties in the Florida case Moody v Netchoice
In Moody v Netchoice, the Petitioner was the State of Florida, being represented by their State’s Solicitor General, Henry Whitaker.
He began his argument claiming that these social media companies were founded as platforms dedicated to freedom of speech and that after they achieved their success they effectively betrayed their billions of users by acting as editors exercising control over the content that appeared on their platform. He claimed this was suppression of speech, in clear violation of the first amendment and that just like a telephone company they have no first amendment right to decide who may or may not use their platform to communicate.
MR. WHITAKER: Mr. Chief Justice, and may it please the Court: Internet platforms today control the way millions of Americans communicate with each other and with the world. The platforms achieved that success by marketing themselves as neutral forums for free speech. Now that they host the communications of billions of users, they sing a very different tune.
They now say that they are, in fact, editors of their users’ speech, rather like a newspaper. They contend that they possess a broad First Amendment right to censor anything they host on their sites, even when doing so contradicts their own representations to consumers.
But the design of the First Amendment is to prevent the suppression of speech, not to enable it. That is why the telephone company and the delivery service have no First Amendment right to use their services as a choke point to silence those they disfavor.
Moody v Netchoice, Audio Transcript, pp. 4-6
He also made a peculiar and contradictory argument that the power of the States to moderate this content is a regulation of conduct, not speech.
MR. WHITAKER: Broadly facilitating communication in that way is conduct, not speech, and if Verizon asserted a First Amendment right to cancel disfavored subscribers at a whim, that claim would fail no less than the claimed right to censorship failed in Pruneyard versus Robins and Rumsfeld versus FAIR.
Social networking companies too are in the business of transmitting their users’ speech. Their users are the ones who create and select the content that appears on their sites. The plat — the platforms, indeed, disavow responsibility for that conduct in their terms of service. The platforms do sort and facilitate the presentation of user speech. But this Court just last term, in Twitter versus Taamneh, and the platforms themselves in Gonzalez versus Google describe those tools as little more than passive mechanisms for organizing vast amounts of third-party content.
The platforms do not have a First Amendment right to apply their censorship policies in an inconsistent manner and to censor and deplatform certain users.
Moody v Netchoice, Audio Transcript, pp. 4-6
However this directly contradicts what the Solicitor General making this argument has said in the petitions and briefs filed in support of this case. We need only look to Page 3a of the appendix in the cert petition Mr. Whitaker filed when seeking review:
The purpose of this law is to prevent big tech companies from silencing conservative voices in favor of expressing a radical leftist agenda.
Moody v Netchoice, Petition For Certiorari, Appendix 3a
Now, the last time I checked, engaging in speech that expresses a political viewpoint is protected speech under the first amendment. And, to the degree social media sites do perhaps have such a bias, it seems to me taking an anti-conservative and pro-progressive posture would qualify as a political viewpoint. Yet he wants you to believe that their bill’s regulation of social media’s so-called progressive political viewpoints isn’t a regulation of political viewpoints…
On the other end, Paul Clement, attorney for Netchoice, would respond that it is this Florida bill and not the social media companies who violate the first amendment and that SB 7072 violates the first amendment several times over.
It takes away editorial discretion, compels speech and discriminates based on content, speaker and most important viewpoint and that it does this in the name of defending freedom of speech while losing sight of the most fundamental principle of the first amendment. It is a limit on state action alone. And that Florida’s justification of their right to do this hinges on the facially untrue claim that nothing in the bill is regulating expressive activity. And additionally that at least 3 landmark Supreme Court precedents (Tornillo, PG&E, and Hurley.) teach that you cannot have the forced dissemination of third-party speech and then reject considerations of market power, misattribution, or space constraints.
Florida’s effort to level the playing field and to fight the perceived bias of big tech violates the First Amendment several times over. It interferes with editorial discretion. It compels speech. It discriminates on the basis of content, speaker, and view — and viewpoint. And it does all this in the name of promoting free speech but loses sight of the first principle of the First Amendment, which is it only applies to state action.
Florida defends its law, as you’ve heard this morning, principally by insisting that there’s no expressive activity being regulated. That blinks reality. This statute defines the targeted websites in part by how big their audience is. It regulates the content and display of particular websites, and it tries to prevent my clients from censoring speakers and content.
If you are telling the websites that you are — that they can’t censor speakers, you can’t turn around and say you’re not regulating expressive activity. It’s all over this law. And that brings it squarely within the teaching of Tornillo, PG&E, and Hurley.
All three of those cases teach that you cannot have the forced dissemination of third-party speech and then reject considerations of market power, misattribution, or space constraints. And Reno and 303 Creative make clear those principles are fully applicable on the Internet.
Indeed, given the vast amount of material on the Internet in general and on these websites in particular, exercising editorial discretion is absolutely necessary to make the websites useful for users and advertisers. And the closer you look at Florida’s law, the more problematic the First Amendment problems become.
It singles out particular websites, in plain violation of Minneapolis Star. Its provisions that give preferences to political candidates and to edit — and to journalistic enterprises are content-based in the extreme.
Moody v Netchoice, Audio Transcript, pp. 62-63
And additionally, Solicitor General Elizabeth Prelogar, was there to represent the federal government’s position. She began her argument in support of respondents with the point the first amendment obviously protects entities that curate, arrange and present other people’s words in expressive compilation. That the court has found this principle holds true for newspaper editors, parade organizers and web designers and that there is every reason to believe it holds true for social media in equal measure. She rebuts the claims made by Florida that the reason this applies to social media and not to something like telephone companies is not because there is some kind of common carrier exception to the first amendment, but rather because a common carriage’s whole function is to carry speech from point a to point b and that they have no first amendment right to censor because they are not producing any expression of their own.
GENERAL PRELOGAR: The First Amendment protects entities that curate, arrange, and present other people’s words and images in expressive compilations. As this Court’s cases have — have held, those principles cover newspaper editors, parade sponsors, and web designers. It also covers social media platforms. Those platforms shape and present collections of content on their websites, and that inherently expressive activity is protected by the First Amendment.
That doesn’t mean, though, that every business that transmits speech can claim First Amendment protection for that conduct. For example, telephone and delivery companies that carry speech from point A to point B aren’t shielded by the First Amendment when they provide that service. But that’s because they’re not producing any expression of their own. It’s not because there’s some kind of common carrier or communications company exception to the First Amendment.
None of this is to say that social media platforms are immune from government regulation. And governments at every level obviously have an important interest in facilitating communication and the free exchange of ideas. But, in promoting that interest, governments have to stay within the bounds of the First Amendment. And these state laws which restrict the speech of the platforms to enhance the relative voice of certain users don’t withstand constitutional scrutiny.
Moody v Netchoice, Audio Transcript, pp. 113-114
Netchoice v Paxton – Opening Arguments
In Netchoice v Paxton the various parties presented arguments that largely focused on how the Texas bill is different from the Florida bill. Because Netchoice was the petitioner in this second case, Paul Clement was the first to give his opening remarks.
He began by pointing out that in some ways Texas’ bill has greater specificity, such as the fact that its definitions of “social media platform” would exclude websites. This spoke to concerns several Justices expressed in the Florida case that it was so broad it could even be applied to Gmail, despite that being categorically different from social media. The other major difference is the Texas bill also excludes sites primarily concerned with news, sports and entertainment, and while Texas’ briefs in this case seemed to highlight that point as though it was a good thing (In that it lacks the issues of over breadth in Florida’s bill that pretty much every justice had expressed concern with during the first session. Clement made the obvious point that this is textbook content-based discrimination, which even Texas agreed is an unconstitutional practice. He would point out that while Texas says the purpose of their bill is to prevent viewpoint discrimination that we need to consider the fact viewpoint discrimination is only a bad thing when government does it. Additionally he spoke to the fact Texas bill explicitly relied on the notion this is valid as a common carriage regulation.
MR. CLEMENT: Mr. Chief Justice, and may it please the Court: I don’t want to proceed as if I wasn’t here for the first argument —
— so let me focus on what’s different about Texas. One thing, fortunately, that’s different — that’s different about Texas is its definition of “social media platforms” excludes websites. So we can just put that Gmail issue to one side for when we’re talking about Texas.
The other thing it excludes, of course, is websites that are primarily focused on news, sports, and entertainment. In the First Amendment business, we call that content-based discrimination, and that’s just one of the many reasons that this statute is, dare I say it, facially unconstitutional.
The other thing that’s different is, in some respects, this statute operates more simply because it forbids my clients from engaging in viewpoint discrimination. Now we’re used to thinking that viewpoint discrimination is a bad thing and that governments shouldn’t do it. And, of course, when governments do it, it is a bad thing.
But, when editors or speakers engage in viewpoint discrimination, that is their First Amendment right. It is also absolutely vital to the operation of these websites because, if you have to be viewpoint-neutral, that means that if you have materials that are involved in suicide prevention, you also have to have materials that advocate suicide promotion. Or, if you have materials on your site that are pro-Semitic, then you have to let on materials onto your site that are anti-Semitic. And that is a formula for making these websites very unpopular to both users and advertisers. So it is absolutely vital.
The other thing that makes Texas a little different is, at least in passing the law, Texas was even more explicit in relying on the common carrier analogy, as if simply labeling websites common carriers makes the First Amendment problems go away.
And that is fundamentally wrong for two basic reasons. One, these companies don’t operate actually as common carriers. They all have terms of use that exclude varying degrees of content. And, second, Texas can’t simply convert them into public common carriers by its say-so.
Netchoice v Paxton, Audio Transcript, pp. 4-6
As I said in my previous video about Netchoice, both states make this common carriage argument and both States simply make up their own definition of common carriers which are entirely inconsistent with the common law definition that term has always held.
Up next was Elizabeth Prelogar. She largely spent her time returning to a line of question that had taken place between Justice Alito and Florida SG Henry Whitaker during the Seriatim portion of the arguments in the last case. This had to do with the State’s claim that social media sites are a common carrier and Paul Clement’s reply that in fact they are more like a newspaper.
GENERAL PRELOGAR: Mr. Chief Justice, and may it please the Court: I want to pick up with the question that Justice Alito asked in the seriatim round to my friend about the idea that the social media platforms don’t perfectly fit into either analogy or paradigm here, and I want to acknowledge the force of that intuition.
They obviously operate at a massive scale that goes beyond any particular parade or beyond any particular newspaper. I think the right thing to do with that intuition is to recognize that it’s not like you can just exempt them from the First Amendment.
They are obviously creating something that’s inherently expressive in taking all of this quantity of speech on their websites and curating it and making selectivity decisions and compiling it into a product that users are going to consume.
So the First Amendment applies, but I think that those kinds of concerns about how the social media platforms and how they look somewhat different from the other kinds of expressive products this Court has reviewed in prior cases can come in to the question of whether the First Amendment is satisfied with respect to any particular regulation.
Now, here, we think it’s not satisfied because of the way that Texas has designed this law. I’d urge the Court to rule narrowly. It’s not necessary here to try to figure out how the First Amendment applies to new technology in general or to every possible website or the Internet in particular. This law has a very clear defect.
What Texas has done is tried to countermand the protected editorial speech decisions of the platform and the only justification it’s offered to the courts below is that it wanted to essentially amplify the voice of users on that platform by suppressing the platform’s own protected speech. That is a defect that is clear under the First Amendment, and the Court could say only that and resolve this case.
Netchoice v Paxton, Audio Transcript, pp. 37-39
Finally, when the solicitor general for Texas presented his opening arguments we pretty much got the kind of absurd, completely non-sensical argument I would have expected from someone there to represent Texas AG Ken Paxton. An attorney who makes Lionel Hutz look competent by comparison.
If you’re not familiar with Ken Paxton you should go watch my old episode about the Texas v Pennsylvania case and the absurd half-assed argument Ken Paxton made to the Supreme Court to try and overturn the election results in several other States, because he didn’t like the way they voted and felt that empowered him to disenfranchise their millions of residents. He wasn’t even claiming the results were rigged. He just didn’t like the way those states voted.
He starts off with a pretty silly claim about what he says is a past analog involving the telegraph.
MR. NIELSON: This is not the first time that new technology has been used to stifle speech. Telegraphs also discriminated based on viewpoint, prompting a national — a national scandal. Yet, under the platforms’ theory, Western Union was just making editorial choices not to transmit pro-union views.
Today, millions of Americans don’t visit friends or family or even go to work online — on person. Everybody is online. The modern public square. Yet, if platforms that passively host the speech of billions of people are themselves the speakers and can discriminate, there will be no public square to speak of.
Netchoice v Paxton, Audio Transcript, pp. 48-50
But this is both absurd and irrelevant. Mr. Nielson is quoting a Harvard Law Review article about “Non-First Amendment Freedom of Speech.”2 The title alone tells you this article is irrelevant in this case where the only question before the court is a facial first amendment challenge. Furthermore, when you actually read the article all it actually says is that there were unsubstantiated rumors about such telegraph chicanery
The actual quote from the Non-First Amendment article he references reads as follows:
Unions meanwhile complained that Western Union delayed the transmission of strike-related telegraphs in order to “demoraliz[e] the strike and frustrat[e] the plans and confus[e] the orders of the leaders.”
Genevieve Lakier, The Non-First Amendment Law of Freedom of Speech
So, when Mr. Nielson says Western Union was just making editorial choices not to transmit pro-union views, that statement is both a lie and a logical fallacy. While Mr. Nielson says they refused to transmit the message, his source says they delayed transmission of the message. Additionally, it’s a logical fallacy, because to say “they were making an editorial choice not to transmit those views” is a textbook example of begging the question.
Not only is the excerpt from Lakier’s article seemingly inconclusive by itself.; but there is a footnote to that paragraph that says there is no hard evidence any officers or directors of western union manipulated the country’s financial news, stock markets and labor unions.4
Mr. Nielson presents this evidence as a statement of fact when his own source goes out of their way to clarify that this claim is not a statement of fact… None of this augers well for the legitimacy of his larger argument, when this is the evidence he brings to bear before the highest court in the land.
What’s more, his arguments only get more frivolous from here. Texas seems to believe that the telegraph was a common carrier because that’s how telegraph companies chose to identify. However it should go without saying (but sadly doesn’t) that telegraph companies were designated a common carrier because they fit the criteria of a common carrier by definition at common law.
His cert petition even goes onto suggest that it was because early telegraphers distorted the flow of information that they were labeled common carriers by the State. He is seriously suggesting common carrier is a conditional designation for bad behavior and not a categorical designation based on objective legal criteria, which flies in the face of hundreds of years of common law.5
Texas believes you can define things legally based on how you feel most comfortable identifying them. They seem to think common carrier and publisher are more akin to gendered pronouns than objective legal terms of art. You could almost call their belief translegalism. They personally feel most comfortable using common carrier as their personal social media category identifier and we all just have to accept their feelings deserve to be treated as objective reality in a court of law.
In fact the very first question he got was from Clarence Thomas calling him out on the stupidity of precisely this argument.
JUSTICE THOMAS: If you — if this was so clearly within a common law tradition, as you suggest, why hasn’t Congress seen fit to — to act as Texas has? And it appears Mr. Clement suggests that actually Congress has acted in the opposite direction.
Netchoice v Paxton, Audio Transcript, p. 50
His next argument is less cartoonishly ridiculous, but it too belies the fact this guy has no idea what he’s talking about and has no business stepping up to the lectern to give his so-called professional legal opinion on a case of this importance..
He says that Twitter has even gone so far as to claim that they can discriminate against people for reasons other than content moderation.
MR. NIELSON: We know this because Twitter has admitted that their theory of the First Amendment would allow them to discriminate not just based on what is said on the platform but “on the basis of religion or gender or physical disability.” That’s not the First Amendment. That’s Lochner 2.0.
Netchoice v Paxton, Argument Transcript, p.49
That first part is what I have to assume to be an intentional misrepresentation of what was actually said.
(2) platforms may moderate content that “directly incites criminal activity or consists of specific threats of violence targeted against a person or group because of their race, color, disability, religion, national origin or ancestry, age, sex, or status as a peace officer or judge.” Tex. Civ. Prac. & Rem. Code § 143A.006(a)(2)-(3).
Netchoice v Paxton Petition For Writ Of Certiorari, appendix B p. 146a
But above that, it’s his ham-fisted anti-canonical case grab I really take issue with. This might take a bit of explaining, so bear with me.
So, there is a very common trick constitutional lawyers like to employ which is to try and tie their opponents arguments to what constitutional scholars call the anti-canonical body of case law. These are cases that it has been decided are so completely abhorrent that they bear guilt by association. If you can prove the case you are arguing against bears any resemblance to these cases, the idea is that itself should count against you. Hence anti-canon or as I prefer to call it in cases like this, anti-precedent. Because it goes beyond merely disproving the argument in a given case, this is precedent that actually delegitimizes your case.
To understand why this is such an invalid argument we need to understand the Lochner case. Now, I have made an entire video covering this case in the past, but if you haven’t seen it or need a refresher here’s the gist:
In New York, in the late 19th century the majority of bakeshops operated in tenement buildings never designed for commercial use and which had serious sanitary issues. To address this, in 1895, New York passed the Bakeshop Act, establishing a detailed code of sanitary standards. At behest of the bakeshop unions, legislators also added a maximum hour’s law, limiting employees work to 60 hours per week max, because it gave an advantage to large union bakeries who could employ shift workers in a way small businesses couldn’t afford to. Joseph Lochner sued arguing if he & his employees wished to work more than 60 hours per week that was their business and challenged this single provision of the bakeshop act, claiming it violated the liberty of contract protected by the 14th amendment’s due process clause. The Supreme Court agreed that, while the bakeshop acts many other health and safety regulations were a valid exercise of the police powers, the majority found the maximum hour’s law was a violation of the liberty of contract and so struck down that one provision, leaving the rest of the Bakeshop Act intact..
Personally, I have always been baffled by how that case made its way into the Anticanon amongst other cases that declared black people were property, that “separate but equal” made segregation constitutional, that citizens with learning disabilities could be sterilized without their consent, or that American citizens could be detained in concentration camps indefinitely and without cause or suspicion where they were held without due process.
But for the purpose of this video, what I take issue with is how nothing about Lochner could possibly be said to have any relation to the argument he is making. What does protecting the liberty of contract have to do with a right to discriminate?
What’s even more offensive was that there is an obviously much better choice amongst the Anticanon in Korematsu. Now bear in mind the Anticanon is so small (just five cases) that the point is not to find an actually closely related precedent, because those never exist. It’s about that lawyer’s ability to make it sound like closely related precedent. Or as I call it “Rhetorical Legalism”. Nielson’s rhetorical appeal to Lochner fails on all fronts. He didn’t even attempt to craft an anticanonical analogy. He just stated a wildly inaccurate analogy as though it were true.
And like I said, the obvious choice was Korematsu. This was the case that justified FDR’s Executive Actions that, among other things, instituted the indefinite detainment of American citizens in concentration camps without due process if these citizens just so happened to be of Japanese ancestry.
He could have said that Twitter’s comment about excluding people based on gender or physical disability is like the discrimination of Korematsu, based on ancestry. That because of someone’s physical attributes you can remove their freedom to be part of the larger society of Americans, be it online or in the real world. I guess what really bothers me is his bad lawyering.
What The Justices Said
Lets get to some of the key points from amongst the justices.
Justice Elena Kagan summarized the issues exceptionally well, when she noted, in the Florida argument, that, if social media firms have “content-based restrictions” on what kinds of speech they wish to host (e.g.—by keeping out what they consider “misinformation… [or] “hate speech or bullying”) “why isn’t that….a classic First Amendment violation for the state to come in and say, we’re not allowing… you to enforce those sorts of restrictions even though… it’s like an editorial judgment, you’re excluding particular kinds of speech?”
Justice Barret would go much further with this argument trying to understand why this wouldn’t constitute editorial control.
JUSTICE BARRETT: Mr. Whitaker, I have a question about this editorial control because, really, when it comes to platforms that are the traditional social media platforms like YouTube, Instagram, you know, TikTok, Twitter/X, it all rides — it all turns on editorial control.
It seems to me that one distinction between this and FAIR is that, here, these companies are speech hosts, right? I mean, the law schools in FAIR were hosting job fairs for this purpose, like online recruiting. They weren’t gathering together a whole bunch of people and saying, here, present your ideas, present your posts. I mean, these social media companies are hosting speech. So why isn’t that more like a newspaper in Tornillo?
Moody v Netchoice, Audio Transcript, pp. 47-48
Chief Justice John Roberts similarly emphasized the crucial private/public distinction at the heart of the First Amendment.
CHIEF JUSTICE ROBERTS: Counsel, you began by saying, you know, the platforms, they want to keep out this person and that person on the basis of race or sex, and then you said that’s not the First Amendment.
Well, the First Amendment doesn’t apply to them. The First Amendment restricts what the government can do, and what the government’s doing here is saying you must do this, you must carry these people; you’ve got to explain if you don’t. That’s not the First Amendment.
Netchoice v Paxton, Audio Transcript, pp. 51-52Bret Kavanaugh would join the chief in making clear this state/private first amendment distinction.
JUSTICE KAVANAUGH: In your opening remarks, you said the design of the First Amendment is to prevent “suppression of speech.” And you left out what I understand to be three key words in the First Amendment or to describe the First Amendment, “by the government.”
Moody v Netchoice, Audio Transcript, p. 43
Do you agree “by the government” is what the First Amendment is targeting?
Another clear distinction just about every Justice skeptically addressed at some point was the social media are common carriers claim. Rightly so. Chief Justice Roberts addressed this distinction in terms of market power.
CHIEF JUSTICE ROBERTS: Counsel, you began your presentation talking about concern about the power, market power and ability of the social media platforms to control what people do, and your response to that is going to be exercising the power of the state to control what goes on on the social media platforms. And I wonder, since we’re talking about the First Amendment, whether our first concern should be with the state regulating what, you know, we have called the modern public square?
Moody v Netchoice, Audio Transcript, pp. 13-14
CHIEF JUSTICE ROBERTS: This may be the same question that Justice Gorsuch was asking, but does the nature of the economy at issue matter to us? I mean, the social media platforms, the Internet, all of that stuff, an incredibly dynamic market. You know, the government maybe not so much.
And — and it’s — it’s — and yet it’s — it’s sort of an inflection point to say that the government has the authority, by categorizing the members — the participants in this dynamic market as common carriers, to take over extensive regulation of them, not with respect to communication, but all sorts of things.
I mean, when you’re talking about railroads or telegraphs, it’s not just moving, transportation, it’s what the railroads look like, what the safety things they have to have, a whole range of things, that, you know, in the wild west economy surrounding the social media platforms and the Internet may be totally inapt.
Now, you know, I don’t know if it comes at a time when you — you — you need to make that transition or not, but that is a very big step when it comes to the extent of government regulation.
Netchoice v Paxton, Audio Transcript, pp. 78-79
Justices Jackson and Sotomayor expressed a different, and arguably more important defect in this argument. While they both reject the common carrier argument itself, they further elaborated that even if it was true that social media platforms could be properly designated as common carriers that still wouldn’t give the states the vast powers of oversight and regulation that these laws would prescribe.
JUSTICE JACKSON: I hear you suggesting that we can just say, you know, Facebook is a common carrier and, therefore, everything it does qualifies as conduct and not speech. And I don’t think that’s really the way we’ve done this in our past precedents.
Moody v Netchoice, Audio Transcript, p. 26
JUSTICE SOTOMAYOR: …I have been thinking about what does that do to the preliminary injunction, because I agree with you, as I understand what the State did below, was to say we don’t have to offer you any justification for any part of our law because everybody of these social media companies are common carriers.
And I think what’s clear is — from our questioning — that that’s not true, that there are many functions that are expressive that we can’t say are common carriers. But, even if we did say they were like common carriers, the issue would be one of what’s the level of scrutiny.
And the State said there’s no level of scrutiny we’re going to address. They basically said we can do anything we want to common carriers and to any of the expressive platforming or deplatforming things.
But I don’t even think that’s true. They can’t come in and — and I’m not sure they can — do any of these things or some of these things even to common carriers if it is a sort of content or viewpoint content exclusion.
So a common carrier doesn’t have to permit unruly behavior. It doesn’t have to permit — it can throw somebody off the train if they are threatening somebody else or if they’re doing other things.
Moody v Netchoice, Audio Transcript, pp. 132-133
Furthermore, Justice Sonia Sotomayor emphatically and repeatedly stated that the two states’ laws are “so broad that they stifle speech just on their face.” And importantly, she asked at what point a law like this becomes so overboard that it actually becomes the duty of the State to justify the Constitutionality of the law.
JUSTICE SOTOMAYOR: This is so, so broad, it’s covering almost everything. But the one thing I know about the Internet is that its variety — variety is infinite. So at what point in a challenge like this one does the law become so generalized, so broad, so unspecific, really, that you bear the burden of coming in and telling us what exactly the sweep is and telling us how there is a legitimate sweep of virtually — or — or a meaningfully swath of cases that this law could cover but not others?
Where — when does the burden shift to the state, when it write — when it writes a law so broad that it’s indeterminate?
Moody v Netchoice, Audio Transcript, pp. 8-9
She clearly seemed to believe wherever that line is, these laws went well over it.
Samuel Alito and Clarence Thomas—the two justices most sympathetic to the states—repeatedly characterized social media content moderation as “censorship.” Justice Brett Kavanaugh effectively responded to this trope. And it pains me to call any argument by Clarence Thomas a trope, God knows I love that guy. But If I’m being fair, that is precisely what this is and Bret Kavanaugh came in with a surprisingly poignant and substantive retort:
JUSTICE KAVANAUGH: Just pick up on the word “censorship” because I think it’s being used in lots of different ways.
So, when the government censors, when the government excludes speech from the public square, that is obviously a violation of the First Amendment.
When a private individual or private entity makes decisions about what to include and what to exclude, that’s protected generally editorial discretion, even though you could view the private entity’s decision to exclude something as “private censorship.”
Moody v Netchoice, Audio Transcript, pp. 100-101
Outcomes
Let’s discuss the possible outcomes for this case, given the totality of information we have. It’s all but certain they will strike down these laws. They easily have 6 votes to overturn, maybe more. But as always, there are a number of possible way they may go about dealing with the case, beyond simply striking down these laws.
In the Florida case, several justices suggested they might not be able to uphold the lower-court ruling against the law, because that state’s legislation is so broad that it may cover websites that aren’t expressive in nature at all, such as Uber or Etsy. If the Court vacates the lower court decision on this basis, the case could be remanded, and the plaintiffs might have to amend their complaint to turn it into an “as applied” challenge focused on social media firms that exercise editorial discretion. Justice Sotomayor suggested they might remand the case, but also leave the preliminary injunction in place, in the meantime.
These kinds of procedural issues are much less significant in the Texas case, where the law in question is more clearly focused on big social media firms. Thus, the Supreme Court could potentially vacate and remand the Florida decision, but rule against Texas. In that instance, the precedent set by the Texas ruling would govern any future litigation in the Florida case, and challenges to similar laws that might be enacted by other states.
Finally, there was much discussion of the issue of whether the tech firm plaintiffs’ arguments that they are exercising editorial discretion somehow undermine their exemption from liability for posting user content under Section 230 of the Communications Decency Act. To my mind, this issue isn’t really before the Court. It does make me a little nervous that Justices Gorsuch and Thomas (and to a lesser degree, Justice Alito) spent so much time trying to go down that section 230 rabbit-hole. This risks the possibility of taking the attention away from the only issue of importance in this case, as it is the only issue before the court. That is whether or not these laws constitute a facial violation of the first amendment.
JUSTICE GORSUCH: But here’s another one for you: What about Section 230, which preempts some of this law? How much of it? And how are we to account for that complication in a facial challenge? But how can we do that without looking at 230?
Moody v Netchoice, Audio Transcript, p.28-28
JUSTICE GORSUCH: I just wanted to give you a chance to finish up on the Section 230 point. I think it’s Section 6 of your law that says that the law is not enforceable to the extent it conflicts with Section 230… So why wouldn’t we analytically want to address that early on in these proceedings, whether in this Court or a lower court?
Moody v Netchoice, Audio Transcript, p.40
JUSTICE GORSUCH: — if they’re not — if the — if the expression of the user is theirs because they curate it, where does that leave Section 230? Because the protection there, as I understood it — and Justice Thomas was making this point — was that Section 230 says we’re not going to treat you as publishers so long as you are not — it’s not your communication in whole or in part is what the definition says. And if it’s now their communication in part, do they lose their 230 protections?
Moody v Netchoice, Audio Transcript, p.122
I do want to point out there really is no contradiction between a first amendment protection for moderated content they choose to remove and the section 230 exemption from liability for content that does appear.
That said, I predict the holding will be a solid win for the first amendment, though the procedural complexities of this case may see that win roll back slightly at some point with the Florida litigation if their case is remanded.
