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 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.”
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.
Prelogar gently disagrees, saying social networks can seriously affect speech rights. “We are not suggesting that governments are powerless to respond” to concerns about platform censorship, she says — just not through laws like Florida’s.
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.
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.
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.
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.
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.