More from Supreme Court hears arguments on the future of online speech: all the news
That question gets to the issue of whether the platforms have an editorial perspective when they use algorithms to choose what they show.
“Is it a consistent message?” Thomas asked.
It’s important to NetChoice to show that it exercises editorial discretion similar to a newspaper that is allowed to reject or accept op-ed submissions as it sees fit.
Clement said that social media companies’ use of algorithms shows that there is so much material on their sites that platforms exercise a huge volume of editorial expression.
It’s been brought up by other justices in passing, but Thomas really keeps harping on whether striking down this law should mean Section 230 is unjustifiable. He’s bringing up some questions that are interesting but also pretty tangential to the core case, like whether “deep learning algorithms” are platform speech. (Clement says... probably.) “What is the algorithm saying?” Thomas asks.
Conservative Justice Samuel Alito asked if Florida’s law would cover Gmail. Clement said he thinks it could.
Without the law, Clement seemed unsure if that would mean Gmail could cut off the accounts of the major conservative and liberal talkshow hosts.
Amy Coney Barrett expresses discomfort with whether striking down the Florida law would prevent any regulation of web platforms as common carriers. Clement’s reaction is effectively that the law is so bad that it should simply be struck immediately and any future questions sorted later, but other justices break in and question that logic.
So why can’t a law focus on specifically regulating some of the world’s biggest communications services? Clement vociferously disagrees, citing Minneapolis Star Tribune Co. v. Commissioner among other cases. We’re getting into the most complicated question of the case here: how far should the Supreme Court go in protecting “Big Tech” companies from regulation overall, not just striking down these particular laws?
After reminding us he’s older than the internet, Thomas makes the claim that sites have been claiming Section 230 protections as neutral “conduits,” accusing them of hypocrisy for saying they hold editorial standards now. NetChoice’s Clement disagrees — saying they’re simply not supposed to be treated as the publishers of specific user-generated content.
Paul Clement is arguing for NetChoice, saying Florida’s law violates the First Amendment “several times over.”
Conservative Justice Amy Coney Barrett asks if the law would impact how information is organized, not just whether it’s hosted. She asks if Florida could pass a law that requires a bookstore not to favor certain books in its display.
“Don’t all methods of organization represent some kind of judgement?” she asked.
Whitaker said “the question of organization is analytically distinct” from that of hosting and that despite prohibitions on shadow-banning (i.e. severely downranking content), platforms can organize content however they’d like.
Etsy keeps coming up as an example of a smaller user-generated content platform that could get hit by Florida’s law, and Whitaker keeps suggesting that its moderation is fundamentally non-speech-related and therefore irrelevant to the debate. As Platformer lays out, that’s simply not true — Etsy’s moderation of speech around Israel and Palestine has in fact been incredibly fraught.
In an exchange with conservative Justice Neil Gorsuch, Whitaker explained why it’s appropriate to compare the social media companies to common carriers like wireless carriers, who can be prevented from silencing speech.
The “principle function of a social media site is to enable communication,” Whitaker said, adding that the more public forum social media platforms tend to host doesn’t change that.
Verizon wouldn’t be allowed to censor a conference call more than a one-to-one call, he said.
Coney Barrett asks whether automated decisions are fundamentally different from conventional editorial judgments. Whitaker tries to bring up Twitter v. Taamneh, in which sites said their automation in a particular case (involving terrorism) didn’t present a viewpoint.
Coney Barrett smacks that down, saying whatever happened in that case, it’s clearly not the argument sites are making here. Whitaker won’t let it go and keeps saying they’re “neutral” ways to organize information — but the justice seems skeptical.
Brett Kavanaugh notes Whitaker’s opening statement doesn’t mention that the First Amendment is conventionally focused on government suppression of speech, not private speech decisions. Whitaker says there’s still a larger First Amendment interest in protecting freedom of speech from censorship by other parties.
Clarence Thomas complains that there’s a lack of specificity in the discussion about what’s covered, and Samuel Alito pushes on whether the law could regulate “expressive” conduct that should deserve First Amendment protection.
Overall, justices are (understandably) focusing a lot whether these companies are really presenting themselves as “open for business” to all comers, or whether they’re making newspaper-like judgments — Kagan asks why banning these editorial-style judgments is not, as she puts it, a “classic First Amendment violation.”
Whitaker said that the preemption of tech’s legal liability shield for hosting or moderating users’ content won’t “dispose of the case.” Gorsuch suggested he would return back to this topic later on.
Brett Kavanaugh asks Florida attorney Whitaker about one ongoing question from critics: would saying the First Amendment doesn’t prevent forced speech on websites undercut the rights of all kinds of other businesses that deal with speech?
Whitaker says no, but Justice Ketanji Brown Jackson picks up the question — asking exactly how the law would pick its targets consistently.
Liberal Justice Elena Kagan alluded to what brought the Florida content moderation law about: platforms’ decisions to exclude speech of anti-vaxxers and insurrectionists.
“That’s what motivated these laws, isn’t it?” Kagan asked.
Whitaker earlier said common carriers have “always conducted their businesses” according to “general rules of decorum.” But he noted that “upwards of 99 percent of what goes on the platforms is basically passed through without review.”
“But the one thing I know about the internet is that its variety is infinite,” Sotomayor continues. “So at what point at 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 exactly what the sweep is?”
Florida solicitor general Henry Whitaker disagrees that the law is overbroad, saying it only regulates websites that “host user-generated content.” Sotomayor disagrees — bringing up sites like Etsy that are far smaller than the Facebooks and YouTubes of the world, and focus specifically on particular kinds of content. “They’re going to have to censor” to maintain those limits, Sotomayor says. Why shouldn’t they be able to do that?
You can tune in directly on the Supreme Court’s site.
[www.supremecourt.gov]
Texas and Florida’s anti-moderation laws are explicitly pro-Republican, but as my colleague Lauren laid out last week, the lawsuits over them could have bigger tech regulation fallout. While we’re waiting for oral arguments to start, check out The Atlantic and The New Republic for a couple of pieces on the states’ counterintuitive bipartisan appeal, plus some countertakes from Lawfare and Techdirt too.
Arguments begin at 10AM ET — you can listen in on the Supreme Court site directly, and I like the annotated C-SPAN feed too.
The ruling could impact other publishing industries and future social media regulation.