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.”
Nielson says when it comes to speech, it’s really not about market power at all.
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.
Kavanaugh followed up, asking with a hint of humor if he could buy into Prelogar’s argument without agreeing to net neutrality.
“You can leave for another day all of the conduit questions that come up in the net neutrality context,” Prelogar said.
“If YouTube were a newspaper, how much would it weigh?” Alito asked Clement.
Alito was trying to nail down whether a news publisher is really the right metaphor for social media companies in how they decide what content to host. Clement has made that point that even in the case where a parade organizer wanted to exclude an LGBT group, the court decided it could make that decision, even though it welcomed a large swath of other participants.
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.
It came in response to a question from Kagan about whether an antisemite should be prevented from posting anything from a social media site, even cat videos.
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.
Prelogar said when the platform’s own conduct causes harm it might not be protected by 230, but that’s besides the point from the First Amendment question here.
“I totally agree but I also think there are a bunch of landmines,” Coney Barrett said.
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.”
But Prelogar said it would be wrong to call those sorts of calls curation by the telegram companies. Unlike telegram providers, social media companies compile a large volume of content in a way that represents the companies’ own free expression.
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.