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.
Coney Barrett asks whether automated decisions are fundamentally different from conventional editorial judgments. Whitaker tries to bring up Twitter v. Taamneh, in which sites said their automation in a particular case (involving terrorism) didn’t present a viewpoint.
Coney Barrett smacks that down, saying whatever happened in that case, it’s clearly not the argument sites are making here. Whitaker won’t let it go and keeps saying they’re “neutral” ways to organize information — but the justice seems skeptical.
Brett Kavanaugh notes Whitaker’s opening statement doesn’t mention that the First Amendment is conventionally focused on government suppression of speech, not private speech decisions. Whitaker says there’s still a larger First Amendment interest in protecting freedom of speech from censorship by other parties.
Clarence Thomas complains that there’s a lack of specificity in the discussion about what’s covered, and Samuel Alito pushes on whether the law could regulate “expressive” conduct that should deserve First Amendment protection.
Overall, justices are (understandably) focusing a lot whether these companies are really presenting themselves as “open for business” to all comers, or whether they’re making newspaper-like judgments — Kagan asks why banning these editorial-style judgments is not, as she puts it, a “classic First Amendment violation.”
Brett Kavanaugh asks Florida attorney Whitaker about one ongoing question from critics: would saying the First Amendment doesn’t prevent forced speech on websites undercut the rights of all kinds of other businesses that deal with speech?
Whitaker says no, but Justice Ketanji Brown Jackson picks up the question — asking exactly how the law would pick its targets consistently.
“But the one thing I know about the internet is that its variety is infinite,” Sotomayor continues. “So at what point at a challenge like this one does the law become so generalized, so broad, so unspecific really that you bear the burden of coming in and telling us exactly what the sweep is?”
Florida solicitor general Henry Whitaker disagrees that the law is overbroad, saying it only regulates websites that “host user-generated content.” Sotomayor disagrees — bringing up sites like Etsy that are far smaller than the Facebooks and YouTubes of the world, and focus specifically on particular kinds of content. “They’re going to have to censor” to maintain those limits, Sotomayor says. Why shouldn’t they be able to do that?
Texas and Florida’s anti-moderation laws are explicitly pro-Republican, but as my colleague Lauren laid out last week, the lawsuits over them could have bigger tech regulation fallout. While we’re waiting for oral arguments to start, check out The Atlantic and The New Republic for a couple of pieces on the states’ counterintuitive bipartisan appeal, plus some countertakes from Lawfare and Techdirt too.
Arguments begin at 10AM ET — you can listen in on the Supreme Court site directly, and I like the annotated C-SPAN feed too.