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.”
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.
You can read the rule itself below — check out the third “based on” section, citing geographic location.
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?