Lauren Feiner

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.

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.”

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.

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

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 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.

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.”