US Solicitor General Elizabeth Prelogar is now weighing in, supporting NetChoice. The Biden administration weighed in on the case in briefs last year.
The state laws in Florida and Texas “don’t withstand constitutional scrutiny,” she says.
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.
Kagan said NetChoice’s argument about Facebook’s editorial discretion seems to work because Facebook is engaged in speech activities. But Venmo, she said, is not.
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.
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.
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.
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.
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.
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.”