Supreme Court hears arguments on the future of online speech: all the news

NetChoice got the last word in the arguments over Texas’ law, with Clement saying the state had not proven social media’s common carrier status.

Amy Coney Barrett is bringing up the Hotel California clause yet again, and I’m actually grateful — she points out the plain language of the law seems to specifically say you can’t ban Texan users. Nielson says it’s a conditional rule. “If you choose to do business in Texas, then this provision kicks in,” but “if you don’t want to do business in Texas at all” you’re okay to geofence the state. “You can’t darn well discriminate” against Texas users if you operate in there, he says.

Or in his words, “intensely competitive” — which he says doesn’t change the fact they could be considered common carriers, so the existence of multiple social networks shouldn’t save those from regulation either. But there are basically three mobile networks in the country! It’s not an outright national monopoly, but it’s a pretty consolidated space.

He makes the point that unlike telegraphs where there’s basically one way to run the wires, “here one can start a new platform, at least in theory, any time.”

Nielson says it’s not an accurate read of the law, but Roberts expresses apprehension about whether it would really be possible to pull out of the state in a way that satisfies its requirements. “I don’t see how they can wall off Texas,” he says.

Amy Coney Barrett suggests HB 20’s scope is more limited than Florida’s equivalent law, saying it only covers the “classic social media sites” like Facebook, not platforms like Etsy. Nielson agrees with her, and weirdly nobody brings up Wikipedia — whose operators have expressed concern they’d be covered by the law.

Nielson is defending HB 20 now. A group of legal scholars, he points out, worry that striking down the Texas law could make tech company regulation in general impossible — although even they call the Texas law “dangerous.”

Kagan asked what makes Internet Service Providers (ISPs) so different from social media platforms in what they can be required to carry. Prelogar said ISPs are “fundamentally different” because they are not engaging in expressive action, rather simply transmitting data to let users access websites.

Clement mentioned what he calls a “Hotel California” provision of HB 20, which he interprets as a ban on companies pulling out of Texas if they can’t meet its legal burdens. Brown Jackson questions whether that’s a reasonable interpretation of the law; she seems less convinced it’s the right read.

“If YouTube were a newspaper, how much would it weigh?” Alito asked Clement.

A lot of today’s fight has been about metaphors, and Alito is questioning whether some of them make sense — a newspaper in NetChoice’s view, and a common carrier like a telegram company in the states.’ Clement points out that the court has regulated the internet specifically before in cases like Reno v. ACLU, which struck down most of the Communications Decency Act. Unfortunately, that doesn’t really clear up the metaphor question.

Clement suggests that’s what users might think if a white supremacist is posting dog photos on their social media account. He was making the point that content from some users with particularly abhorrent views could impact everything they post, making it reasonable to moderate their account as a whole.

Clement fields a question from the court on why Texas’ requirement to explain social media takedowns is more problematic than EU laws requiring some level of consistent moderation and explanation — he argues that Texas’ individual response provision would be “incredibly burdensome.”

NetChoice’s Clement brings up the idea that the government can regulate content on broadcast radio and television because wireless spectrum is a scarce public resource — an idea that came out of Red Lion Broadcasting Co. v. FCC in 1969. There’s no similar rationale that allows the government to regulate speech on the internet, and Red Lion hasn’t been reconsidered. (I recently talked about Red Lion with Barack Obama on Decoder — he told me that government needed to find a new hook to enforce content moderation rules.)

Clement said that’s because under the states’ laws, the companies would also have to carry suicide promotion posts if they did. That’s because Texas’ law, for example, prevents discrimination on the basis of viewpoint.

Arguments over Texas’ social media law in NetChoice v. Paxton are just beginning now.

The conservative justice asked the Solicitor General if platforms could be liable for boosting content like the Tide Pod challenge (where people challenged each other to eat the laundry detergent pods) under Section 230.

Several justices (both liberal and conservative) have seemed sympathetic to the idea that private companies can engage in harmful censorship, with Alito referring to the possibility as “Orwellian.” But Kavanaugh keeps pushing back on the premise. “We don’t want the state interfering” with these private entities, he says, even if they’re powerful.

Gorsuch and Prelogar got into a rapid back-and-forth over whether social media companies can be considered common carriers like a telegram company. Gorsuch argued that despite being common carriers, telegram companies would argue they’re allowed to exclude some “bare minimum” amount of speech, but otherwise are “open to all comers.”

Speaking to US Solicitor General Elizabeth Prelogar, he suggests Section 230 is conditioned on the idea that web platforms are common carriers. That’s a weird take on Section 230, which is regularly applied to small blogs and online newsletters — and was passed partly to avoid punishing services that moderated content to be “family friendly” rather than acting as neutral conduits. Prelogar, for what it’s worth, disagrees with Gorsuch.

US Solicitor General Elizabeth Prelogar is now weighing in, supporting NetChoice. The Biden administration weighed in on the case in briefs last year.

Brown Jackson brings up a common critique of NetChoice’s position: the internet has become the public square, and large social media companies play a huge gatekeeper role, so why not regulate them? NetChoice’s Clement argues that web platforms rise (he mentions TikTok) and fall (sorry, X) quickly enough that it’s clear there are lots of avenues for speech online.

Clement said that might be the approach of social media sites if the court upholds Florida’s law. That’s because it requires platforms to enforce content moderation rules in a consistent manner, a requirement that can be hard to parse. As a result, platforms might avoid hosting controversial topics altogether.

Kagan is trying to find the boundaries of sites’ First Amendment rights, asking about whether direct messaging services and payment platforms like Venmo could be made to host accounts regardless of viewpoint.