Transcripts For CSPAN3 Justices 20240704

Cooperate to proceed as if i wasnt here for the first argument so let me focus on whats different about texas. One thing thats different abtexas is its definition of social media platforms excludes website. We can put the gmail issue to one side when talk about texas. It also excludes websites primarily focused on news, sports and entertainment. In the First Amendment business we call that contentbased discrimination. Thats one of the reasons this statute is unconstitutional. The other thing thats different is that in some respects this statute operates more simply because it forebids my clines from engaging in viewpoint discrimination. Were used to thinking that viewpoint discrimination is a bad thing and the government shouldnt do it. And of course when governments do it it is a bad thing. When editors of speakers engage in viewpoint discrimination that is their First Amendment right. It is also absolutely vital to the operation of these websites because if you have to be viewpoint neutral that means that if you have materials that are involved in Suicide Prevention you also have to have materials that advocate suicide promotion. Or if you have materials on your site that are prosemitic, then you have to let on materials onto your site that are antisemitic. Thats a formula for making these websites very unpopular to both users and advertisers. So it is absolutely vital. The other things that other thing that makes texas a little different is at least in passing the law texas was even more explicit in relying on the common carrier analogy as simply labeling websites common carriers makes the First Amendment problems go away. Thats fundamentally wrong for two basic reasons. One, they done operate at common carriers, they have terms of use that exclude varying degrees of content. Second, texas cant convert them into public common carriers by its sayso. I welcome the courts questions. If these laws go into effect, what steps would your client take to comply. In particular addressing the situation of compliance in texas and florida as opposed to nationwide. Sure, i mean, one of the things theyd contemplate at least with respect to texas in the first instance, is there some way to withdraw from the market in texas and florida . And of course texas had that in mind in the statute and specifically said, we essential have to do business in texas and cant discriminate against users based on their. Yo graphic geographic location inning to. If we lose this including the idea that we could be forced to engage in expressive activity in texas we would fundamentally have to change the way we provide our service in order to engage in order to provide anything like the service we want to while not engaging in viewpoint discrimination we basically have to eliminate certain arias of speech entirely. So we just couldnt talk about Suicide Prevention anymore because were not going to talk about suicide promotion. I guess we couldnt have prosemitic speech because were not going to have antisemitic speech. We have to figure out some way to try to engage in even more content moderation or editorial discretion to try to get us to a level where were more benign and somehow we dont run afoul of texas law and then oh the then on the disclosure provisions the record reflecks that youtube would have to basically increase its disclosure and appeal process basically 100fold in order to comply with texas law. I mean im happy to talk more about the common carrier issue, i think its a central part of their defense. There was an allusion about section 230 treats mie clients, the websites as common carriers to the contrary, congress specifically, 47 u. S. C. 23 subsection 6, which we cite in our brief, its a provision in the same act of congress that says Interactive Computer Service should not be treated as common carriers. I think the thrust of 230 is dont just be a common carrier. Dont just put through all of this material. We dont want that. We want you to exercise editorial discretion in order to keep some of the worst of the worst off the site. All that is true. I acknowledge all of that. But it also says, thats true only if its not your speech. And that seems to be in tension a bit with your statement that everything is your speech. Justice barrett pointed out a feature, these algorithms arrange, sort, promote certain posts by users and not others. And is that not your not yours, but your clients speech . I dont think its our speech in the way that section 230 talks about the speech. And i think for these purposes you have to distinguish between the speech that is the editorial function and the underlying user speech. I understand that. I didnt mean to suggest otherwise but theres some editorial speech, your term, going on. I think thats right. So the carrier would be liable for its editorial speech . I dont think so. I mean, you know, i did actually reread the brief they filed at least in the gonzalez case and i think that you could make a strong argument based on the text of that statute that that kind of editorial functioning is not is not something that causes you to lose your 230 protection. So its speech for purposes of the First Amendment, your speech, your editorial control, but when we get to section 230 your submission is that that isnt your speech . Yes, as a matter of statutory construction, otherwise section 230 ends up being selfdefeating. The point of section 230 was to promote editorial discretion and this court wrestled with these issues. Theyre hard issues. I certainly applaud the insthaingt you shouldnt resolve them here. But i dont think that just by recognizing that my clients are engaged in editorial discretion when they make decisions about whats going to ultimately go to the individualized screen that a user is going to see when they tap into their website or their application, i dont think thats the kind of speech that is youre talk about in the 230 context and if you did, i think you would defeat the fundamental purpose of 230. They wanted you, they wanted my clients and others, to exercise editorial discretion to keep bad material out. With respect to other peoples speech. Seems like we have speech and then we have speech. You cant you literally im happy to argue that case right now if you want to but you cant have its a hard question for us, its perfectly relevant here and very important. 230 preempts things. And we dont know how much of this law it preempts. Absolutely. But this law is unconstitutional in all its applications, and certainly it has no plainly legitimate sweep you dont have to reach the 230 question directly here. I would say when youre reading those statutory terms in 230, you wouldnt sweep in editorial discretion. If you do youll defeat the fundamental purpose of section 230. What about editorial scretio i want to raise with you the question i raised with the solicitor general who offered a thoughtful response. Many of your clients terms of service, while reserving some editorial discretion, and i think about most of them as speaking about the things covered by 230, obscenity. Etc. Go out of their way to promise an open forum to all members of the public. And go out of their way to say we dont endorse what other people say on this site. And go out of their way to say all views shall flourish. Thats not true for all of your clients, but its true for some of them. Many of them. What do we do about that . So i would say that, you know, its true. Some of my clients, and some more than others, i think all of those terms of service as the general said, go on to say, and theres certain things that are out of bounds. And i do think its a is this a factually through tru thing that my clients, in the main, as long as you stay within the line, they dont want to promote and open dialogue and fair dialogue. If you look at the center for growth and opportunity brief, it shows you some conservative voices have flourished on these websites. Ben shapiro and daily wire are killing it on facebook. We do want a broad discussion. Theres some stuff that is just out of the lines. I dont think its as simple to say its just the 230 stuff. Again we had a debate about what otherwise objectionable means. But i think that my clients are getting a lot of pressure to be particularly careful about things that are damaging to youths. I think in that context they want to err on the side of keeping some bad material off. You mentioned that a few times. Let me press the other way though. Doesnt it also hold that on your view, part of the editorial discretion of that platform would be that it could use algorithms designed specifically to try to attract teens to addiction . Or suicide . Depression . Those kindz of things as well . That would be part of their editorial discretion too. A website, i dont think my clients i dont mean to cast aspersions on anyone. I think its a natural consequence of your position isnt it . There would be protected First Amendment activity with that very different website with a Business Model that i dont think would stay in business very long and it is possible, as the United States has pointed out in its brief, that if you have a different concern and you identify a different government interest that maybe the government might be able to do something particularly if it does in it a contentneutral way to address those concerns. To get back to something wrusties kavanaugh pointed out before, i think that both texas and florida have been pretty aggressive about their government interest here being something that is not just not a legitimate interest in the First Amendment context but is affirmatively prohibited which is the idea that were going to level the were going to amplify some voices and were going to make certain put burdens on private parties so some voices can be louder than others or some people can get a boost from what theyre getting in the marketplace of ideas. The only place this court has ever allowed that was in turner. And i mean Justice Kavanaugh you point out, one of the things there was content neutral. I think the critical thing in turner is that bottleneck or chokehold on the content that went into individual houses. And i think thats what made what was otherwise an impermissible government interest a legitimate government interest in that narrow context. Maybe you could say the same thing, i dont know if its still a good law but theres a scarcity rationale. Flos scarcity rationale on the internet and this court said that in 1997 in the reno case. Can i ask you about a distinction between two possible kinds of anally kaigs of the texas law . So one is the application that prevents you from keeping out certain speech that you want to keep out. You said antisemitic speech. It could be any of a number of things. As i understand it, the texas law also prevents prevents you also from doing Something Else which is suppose you wanted to prevent antisemites from posting anything. You know, you want you just wanted to say that theyre a class of people were not even going to let them post cat videos. Should we think about that set of applications differently . I dont think you should think of it radically differently. Its a different application. But i think its the same idea. Which is there are some speakers and i think this is going to be, you know, very few, but there are some speakers where they are so associated with a particular viewpoint that their it informed essentially all of their speech and the speech of other people in the forum. If you have a white supremacist on your speech forum and theyre posting there, its going to cause a lot of other people to say what is that person doing . Whats going on here . Why are all the dog photos white . Its going to fundamentally change the dynamic on the website. And i think a website trying to promote a particular discussion has an a First Amendment right to exclude those people and in practices this, you know, what is used to exclude sort of, you know, sexual predators which is something again the government cant do. Packingham, but facebook does. And theres certain other people, you know, very distinct viewpoints where its in a sense we know the viewpoint is problematic, even if the particular post is not. But mr. Clement. I just wanted to follow up on that. It seems to me that Justice Kagans question gets to the distinction in 303 creative between turning people away and the speech that you have. If you think about it as violencing someone you let on your platform that seems more like speech or content moderation to the extreme, for example. But i assume the implication of your answer to Justice Kagan is that you could tell the antisee mitt were not open for business to you. Right . You can tell that person that our speech forum is not open to you. And i think thats what makes it different that texas is focused on speechorriented platforms. If youre in the business of speech and you have somebody, and again this is not sort of other prohibited statuses. This is viewpoint. And so you are a notorious antisemite, we dont want you to participate in this conversation. Religion then. Sure. And i want to have a catholic website. I can keep off somebody who a notorious protestant. I want to preserve i want to preserve the future the discussion on my forum. Its a private forum and the government cant tell me as a private party let the protestant into the catholic party. I dont think so. Can i ask you about section 2 . I dont think anything has been said about it so far. So you say that section 2s individualized explanation requirements violate the First Amendment because they impose a massive burden, right . Thats your argument . It seems to me that European Union has imposed exactly the same, pretty much the same individualized explanation requirement on anybody who operates there that texas has. And im not saying whatever the European Union says is ok is constitutional here. But just on the practical question of whether its too much of a burden, if its not too much of a burden for your clients to do it in europe how can it be too much of a burden for them to do it ear . As i understand the requirements theyre different. Theyre materially different. And in a sense the European Union provision has sort of a built in reasonably practical provision right into what you have to do. You only to do whats reasonably practical. This is an absolute requirement to respond turnover takedown and thats over a billion takedowns of comments in a quarter for youtube and theres also an appeal process which i dont think is coextensive with the process in europe. Just as a practical matter i think this is more burdensome. As you said, the First Amendment does not apply in europe and i think that having this kind of disclosure requirement on what is really an editorial discretion decision is potentially, i mean, hugely problematic. If you took this and said the new york times, you have to tell us why you rejected my wedding announcement, we only take like 10 of the wedding announcements, you have to tell me. Even if you automiez that and said, one if you werent rich enough, two if you werent connected enough in new york social circles and three we just didnt like the way you look. Some of your clients are humongous. If you want to says this unduly burdensome then you have some obligation in the District Court to try is it enough for you to say this is a huge sphwhurd so knock this out. Didnt you have to provide something to show how much, what resources would be required . Why that would be too much for these megaliths. We did. Theres more of a record in the texas case than the florida case. The witness for youtube in their declaration specifically said this would be 100 times more burdensome than their current process. So there is a record on this. It is incredibly burdensome. The 230 argument is intriguing to me. The distinctions that youre drawing somehow, to some degree, escape me. Is it your position that you are exercising editorial discretion as to everything but, say, youtube, as to every video that is placed on youtube, you have exercised editorial discretion that you want that on youtube . I would say that we have exercised some editorial discretion to not sort of eliminate that from the site entirely and as to an individual user weve used what are typically in many cases neutral algorithms. Some of them are not neutral. Even in the briefs i think made quite clear, although at a certain point some algorithms were neutral between rice pilaf and terrorisms, there were other efforts to efforts to get terrorist stuff off those sites. If you have a newspaper and you published the content that appears in every single one of of the videos on youtube that you allowed to be to be included you would be liable potentially for the content of that material. I dont understand the rationale for 230 if it wasnt that. You cant be held responsible for that because this is really not your message. Either its your message or its not your message. I dont understand how it can be both. Its your message when you want to escape state regulation, but its not your message when you want to escape liability under state tort law. I dont really think were being inconsistent and what i would i would try to draw theagey to a good, oldfashioned anthology. If i put together an anthology of 20 short stories, everybody understands that the underlying short stories are still the product of the individual author but as the anthologist, as the editor of this compilation who decided which 20 got in, which ones didnt, im responsible for those editorial discussions. Those decisions. Those are both protected its for amendment decisions. You can distinguish between the underlying material and the editorial decisions. In common law the publisher was responsible for both. And so they were still liable for what the republishing the authors work. Thats what congress wanted to get rid of in 230. They wanted to essentially give our clients an incentive to weed out of the anthologies the stuff that was harmful for children and problematic. Thats why i dont think it works to say oh, well, then thats your speech so youre youre liable under 230. Its that editorial control, weeding out the bad stuff. That was whole point of 230 to empower that. I dont know how you could be liable for well, i take that back. For fiction. But certainly if it was i mean if you back in the day when some written material was considered to be obscene, you put together an anthology that included obscene material you could be sued. Today if you put together an anthology of essays, nonfiction writing, and theres defamation in there, then the publisher could be pseudo. Exercising editorial discretion doesnt shield you from liability. Not in common law. Thats why congress did with 230. Congress looked at common law and said this is problematic. The only way to avoid liability with common law is if you act a conduit and let everything in. If you keep out even a little bit of important then you i dont want to belabor the point. Let me say to the sides in prior cases. You say this is just like a newspaper basically. Its like the miami herald and the states say no this is like Western Union, its like a telegraph company. And i think i look at this and say its really not like either of those. Its worlds away from from beth of those. Its nothing like a newspaper. A newspaper has space limitations. No matter how powerful it is it doesnt necessarily have the same power as as some of your clients. But put that aside. Newspapers overtly send messages. They typically have an editorial. They may have an editorial printed 365 days a year or more than one. Thats not the situation with even the most prominent of your clients. I dont know how we can decide this case by say, by jumping to one side or the other of this case law. Justice, let me offer two thoughts. This isnt the first time youre wrestling with the internet. You wrestled with it in reno and last term in 303 creative. This is more like the newspaper or parade organizer than a common carrier. As to the cases, whether you think this is different from a newspaper, i mean the arguments that youre pointing to to say its different are the argues that those cases wrestled with and said didnt matter. I know you know this, but there was all this language about it being a monopolist, and that was in the context of a local political election, if you couldnt get into the miami herald where were you going to go . The court said it didnt matter. Then in hur lee theres a lot of language in the courts opinion that says, you know, this is not like much of a message. They let some people show up even if they get there like the day of. And the only thing theyre doing is excluding this group. The exclusion was the message that they were sending. Its the message the state was trying to prohibit. Thats kind of the same thing here. Lets say youtube were a newspaper, how much would it weigh . [laughter] i mean it would it would weigh an enormous amount which is why in order to make it useful theres more editorial diskrergs going on in these cases than any other case that youve had before you. Because if people tend to focus on the users that get knocked off entirely and end up on the cutting room floor. But both these statutes also regulate the way that these social websites get you down to something thats actually usable to an individual user. And in fact if you tried to treat these entities like a true common carrier, so first in, first out, order of, youd open unwf these websites and it would be gobbledygook, half of it in a language you didnt understand. And youd get all this stuff you didnt want. Id like to go back to the individualized explanation requirement. Please remind me, what did the District Court do here . Did it grant you an injunction here . That was the Circuit Court who did that . Yeah. So it was the district considerate who looked at the amount of material you submitted and i know your declaration, youtube said it would be a burden, 100 times more than it does now. I dont know what the quantify case of that whether that was quantity if id or not. Was it . Was 100 more, 100 more what . 100 more of its current effort. We still dont know what the cost of that is. Theres a lot of unknowns. But this was a challenge with respect to. That and texas seems to say you dont need to do much. Just need to have the computer spit out one through 10 reasons. If you have a few individualized ones you could just explain those individualized. What do we do with that dispute . Because it is a facial challenge. It is a facial challenge. Its a preliminary injunction. We have been over some of that. Here there was there wasnt just declarations. There were depositions taken. There was a record that was put together on all of this. And texas was taking a slightly different view of what the burdens of the of text two were there. So i think on that, you look at the railroad before the District Court you should affirm the District Courts preliminary injunction. I also think even what they say on page 44 of their red brief is that, you know, you can do this in a relatively less burdensome way as long as your editorial policies are sufficiently specific and particularized. And what theyre basically saying is, you could change your editorial policies a little bit to make it easier to comply with this disclosure obligation. That seems that begs the question, right . Because theyre affecting ok. Justice kagan . I just have a quick question. So part of the dynamic that i think is going on in these cases is the fact that this regulation is enacted by the democratically elected representatives of a state. And i suppose if the states regulation of these platforms gets too burdensome then presumably the platforms can say forget it. Were not going to operate in your state. And then the citizens of the state would have the chance to determine if thats what they really wanted. Thats sort of how im looking at this at a meta level. What caught my attention was your response to the chief justice when you suggested that your client couldnt withdraw from the state of texas, because you read the provisions related to censorship and geography as ensuring that you dont do so. I had not read that provision in that way. Can you say more about why say more about why that was your interpretation . Sure. This is not do not discriminate against texans. The fact that it is preventing us from discriminating against someone in texas is basically telling us that we cannot geofence our service and try to essentially explain sometimes you get your Cable Service with the provider and cannot get your football game. They say if you are mad about it, call the number on cam plate and complain. We cannot do that in response to this law. The leaders in texas were able to tell your constituents if you , like your website, you can keep it, we are not going to threaten. They cannot pull out based on regulation. So even if we could read it a different way, you are saying it is necessary, i guess this dovetails with my concern about us not having state interpretations or an application to really understand. I can read this differently. It seems like it is fitting into the set of things youre not allowed to do. You cannot censor people based on the viewpoint of the user, you cannot censor them on the basis of the viewpoint being expressed, and you cannot censor them based on their location in your state or another part of the state. I guess i do not necessarily see that in the same way. You cannot just automatically do that, i guess. It seems to me quite clear that it is designed as the Hotel California provision. A poison pill. You cannot leave texas, even if you want to try to do that as a way of showing this is a way of regulating activities. So, i do think that is the right reading. The fact that it is geographical location in texas is kind of a clue to that. It is not something where if you are a texas fan you are , protected matter what in america. It is that you cannot do the geosensing that you might do to comply with an idiosyncratic state law. Just for the sake of completeness, not part of the preliminary induction, there are challenges to these provisions and its one state trying to regulate everybody so that is part of the case that will be here but it is not here. All this is is a preliminary injunction that runs to my clients. This statute has a small universe of people but if there is someone else out there who is not one of my clients and not covered by this injunction the , statute could take effect on those people in the same is true in florida. Thank you, counsel. Mr. Chief justice, if it may please the court, i want to pick up with the question Justice Alito asked to my friend about the idea that the social media platforms dont perfectly fit into either analogy or paradigm. I want to acknowledge the force of that intuition. They operate as a massive scale that goes beyond any particular parade or beyond any particular newspaper. I think the right thing to do with that intuition is to recognize its not like you can exempt them from the First Amendment. They are obviously creating something that is inherently expressive and taking this quantity of speech on their website and curating it and making selectivity decisions and compiling it into a product users will consume. The First Amendment applies but i think those kind of concerns about how the social media platforms and how they look somewhat different from the other kinds of expressive products this court has reviewed in prior cases can come into the question of whether the First Amendment is satisfied with respect to any particular regulation. We think its not satisfied here herewe think its not satisfied here because of the way texas has designed his law. Its not necessary here to figure out how the First Amendment applies to new technology in general and every possible website in the internet in particular. This law is a clear defect. Texas has tried to countermand the protected speech positions of the platform and the only justification is offered to the courts is that it wanted to amplify the voice of users on that platform by suppressing the platform own protected speech. That is a defect thats clear in the First Amendment and the court can say that and resolve this case. I welcome your questions. When i asked you about the difference in treatment of some private parties as opposed to the government engaged in similar conduct. Your answer was of course that it would be different. The government be bound to comply with the First Amendment. There was some discussion in a number of the amicus briefs about instances in which the government and the private party say petitioners here and the government coordinating efforts. How would you respond to that . I think the position where we are offering here and that the position the court will consider next month and the mercy case are entirely consistent. We acknowledge that if the government actually coerces the platforms and takes over there editorial decisionmaking, the platform could be deemed a state actor and would be subject to First Amendment scrutiny. We vigorously disputes that is actually happening in the federal government has engaged in a kind of coercive conduct and we dispute the legal standards that were applied in that case. There is no inherent tension here. The federal government can act and criticize the social media platform content moderation decisions using the bully pulpit to express views and at the state disagreed with how they were exercising their content moderation, they could have done the same by criticizing them are urging them or influence them to adopt a separate standard. The state said theyre going to pass a law that takes over their content moderation. And dictates it has to be done in a different way. The texas law even more than florida can be understood as an expansion of public accommodations laws. The United States is often in a position of defending a public accommodations laws and insisting that they be vigorously enforced. How do you see what texas is trying to do as consistent with the broader stance about public accommodations laws . I want to stake out potentially some separate ground with respect to public accommodations laws on a particular status. We think the laws are valid on their face and they serve compelling governmental interests. To the extent you are looking at how ordinary public accommodation law operates, the refusal to deal and serve, we think thats a regulation of conduct. Ordinarily, there would be no First Amendment problem with the application of that law. I acknowledge that he gets more complicated when those laws are applied to a business that is providing an expressive product in cases like hurley, certain applications, sometimes the public accommodations law has to give way to First Amendment interest. The court has never suggested that the refusal to deal are served based on status and with research respect to an association would fail under First Amendment scrutiny. Instead, you look at 303 creative and there the concern was about changing the message or a case like hurley. Gay and lesbian individuals could march, but you couldnt change the message by hauling a particular sign. We recognize there will be applications where you have to conduct that analysis but if the but the question is can you , bar people from creating an account . They want to lurk on x and read other peoples post, that law would be valid. I want to briefly address the question about cba presumption preemption under section 230. I want to say there are unresolved issues here. I would warn the court away from resolving how much conduct 230 protects and how that interacts with the texas law here. The only point i would make is that they were questions about what it means to act in good faith and questions about what it means for the platform to take down content thats otherwise objectionable. However those disputes might shake out in a particular case, surely texas is not saying its entire law is preempted. And fully protected. What the court could do, not knowing the scope of how the preemption issue might resolve is whatever exists in that category of speech that texas is prohibiting, the editorial provisions versus what 230 would offer on the other hand whether , that is a big category or little category all of the , things in that category constitute protect decisions by the platform that havent been adequately justified. And i think that is all you need to say about the preemption issue in this case. The legislative body enact a law requiring viewpoint neutrality in some area and it does so because it is concerned that people who express a particular viewpoint are suffering discrimination. Is that unconstitutional that the grounds that the intent of the legislative body was to benefit a particular group . I dont think that kind of law would immediately be unconstitutional. If its structured like a generally applicable public accommodations law, there might be significant governmental interest in being able to protect against that kind of discrimination. Unless there are any further questions . Can i do one more . Sure. Governments spend a lot of time defending Net Neutrality so maybe i should have asked you this with respect to the florida law. Just given the breadth of that law and why are internet Service Providers in your view so different and what if they wanted to make certain content distinctions . Internet Service Providers are fundamentally different because they are engaged in transmitting data in order to make websites accessible and that is not inherently expressive. They are providing the infrastructure, cable and fiber up six and fiber optics and service to make sure you can log in your home computer and access the internet at large. But along the way they are not , compiling that speech in an expressive compilation of their own. We would put them in the same category as telephone and telegraph companies or ups where you could say they are literally facilitating the transmission of speech, but they are not creating an expressive product that could implicate the First Amendment principles at stake. You might ask if they wanted to start discriminating with respect to the services for particular kind types of websites. Maybe an internet Service Provider decides to slow down service to a streaming site because it wants direct internet traffic to another website or streaming service. We think Net Neutrality can come in there and say you are not allowed to discriminate based on content. Thats because there would be no expressive speech or compilation you could attribute to the internet Service Provider itself. People dont sign up with comcast or verizon to give them curated access to the internet. They are engaging in service with the companys because they need someone physically to transmit the data so they can get access to the whole internet. Can i ask one . I dont have to buy anything you just said to rule for your position. [laughter] anything you just said on Net Neutrality, right . [laughter] you dont have to agree with me but id like to persuade you someday. I just want to make sure thats walled off. We think the platforms are engaging in expressive activity and is protected by the First Amendment and you can leave the conduit questions that come up in the Net Neutrality context for another day. Thank you, counsel. Mr. Nielsen . Thank you. It has been a long day. Mr. Chief justice and may it please the court. This is not the first time new technology has been used to stifle speech. Telegraph discriminate based on viewpoint, prompting a national scandal. Yet under the platform, Western Union was making choices not to transmit prounion views. Friends or family go to work online these days. Platforms that passively host the speech of billions of people are themselves the speakers and can discriminate, there will be no Public Square to speak of. We know that because twitter has admitted their theory of the First Amendment will allow them to discriminate not just based on what is set on the platform, but on the basis of religion or gender or physical disability. Thats not the First Amendment. Thats laughner 2. 0. And implications are gravely serious. As new york explains, if these algorithms our constitutionally protected, platforms might be able to continue selling advertisers the ability to discriminate based on race. Or as professor Lawrence Lessig and tim woo who do not file briefs typically in support of texas, caution not just dates but Congress Might be powerless to address the social media crisis devastating the lives of kids. Hb 230 is a modest effort to regulate that in terms of discrimination. Platforms can say anything they want about anything under hb 20. They can say anything they want. Users can block anything they dont want. There is no limit on that. All thats left is voluntary communication where people want to speak and listen. This law is nowhere near the heartland of the First Amendment. Instead it is democracy and federalism, not a facial preinjunction. I welcome the courts questions. If this was so clearly within a commonlaw tradition as you suggest, why hasnt Congress Seen fit to act as texas has . It appears mr. Clement suggested that congress has acted in the opposite direction. Would you comment on that . With all respect to my friend, i dont see how they are reading of 230 is at all consistent with congress. They have policy arguments about how it should work but just read the words of the statute and it doesnt work. His suggestion that congress has somehow kicked out texas, i dont think its consistent with the text of the statute. I did not hear a lot of textual argument. That would be my first answer. My second answer i have no idea. , i do know that texas has the ability to protect texas and thats what theyve done here. You began by saying the platforms want to keep out this person or that person on the basis of race or sex. And then you said thats not the First Amendment. The First Amendment doesnt apply to them. It respects with the government can do. The government is saying you must do this. Got to explain if you dont. Thats not the First Amendment. The First Amendment is big and applies a lot of different ways. It is true, for us, we are saying because it is not speech, it is conduct, we can require neutrality. In other cases, the same companies are saying when new york or in other states you cannot have algorithms to hook the kids. They say we have a First Amendment right to do that. Its the same First Amendment that says, it will be hard for any state to say you cannot have an algorithm that hooks kids. Im sure if the same of the other states but the question is, they dont have the obligation to act in the same way that you as the state have the obligation to do. They can discriminate against particular groups they dont like, whether its a group that encourages kids to take the tide pods contest or Something Else. You have different obligations. I guess a couple ways i could respond to that. My reaction coming to the case was the same as yours. Wait a minute its their own , platform. You cannot censor. They are private. Thats the exact same scenario they came up with the telegraph. Telegraph had the technological ability to say we are not going to let this type of speech through. You are right but you are assuming that they are like the telegraph. It seems to me that is a big part of what the case concerns and i am just not sure that the telegraph had a compelling type of monopoly. If you did not have to if you did not want to use the telegraph that was there you did not have another choice. Im not sure the same thing applies with respect to social platforms. So i give you my theory for why common carrier support is here. I agree the cases are really hard to figure out where conduct starts and speech ends and all of that. You look at the various cases, some say they cannot be reconciled. Im not sure about that but its a helpful way to think about it. We know there is a line between speech and conduct. We know that common carriage has always been on the nonspeech side of the line. The conduct side of the line. So if this falls within the common law tradition of what is common carriage, nobody has thought that falls on the speech side of the line. We cant make them Say Something that they didnt want to say. The point of it is that is a signal to the court to figure out which side of the line we are on. That turns on who do you want to lead the judgment over who can speak or not speak on these platforms. Do you want to leave it with the state or with the various platforms . There First Amendment has a thumb on the scale in that question. It does and that is why i said it is important to go back and look at the history because somewhere the First Amendment has to end where everything is covered by the First Amendment. The court has said the way that we tell the difference is whether its inherently expressive and the court has said what they mean by that. They talked about in miami herald you are not a passive conduit. In her early in her early hurley whether you are intimately connected. This Court Leisure haddock a case where they talked about what these platforms do. They said they are passively connected to the speech on the platform and they are agnostic about the content. Its one big algorithm that is smashing things together. I think thats important. I want to stress this is a facial posture. You look at the breadth of our statute, we talked about whether you have to host someones speech. There is also you just want to read facebook, thats one of the provisions of our statue. Want to go online in the morning as he was going on the world, according to their theory, they can stop you for doing that. Thats surely public accommodation law. The idea that they dont like somebody because of their race or disability and we are going to say we will not allow you onto our platform, that surely cannot be constitutional. That goes beyond content saying we will not let people even look at what we are selling. It is like a bookstore saying we will not sell you our book. Thats different than we will not publish your book. Do you think there are unconstitutional applications . Thats a hard question. I suspect there might be. What would they look like . The one that comes to mind would be, imagine a publisher did not want to publish the book written by the proud boys. That is the example they use. You might very well have a challenge to that. The problem for them is they picked the most vile example when we would say surely, you can let them on facebook and you cannot take them off because their grandma says something outrageous. There has to be a limit. That is why a facial resolution in this case doesnt work. How do you separate one from the other . Thats hard. Right . I would say this court struggled with that in 303 creative. Its really hard to know when something becomes inherently expressive and the court cases like dale about when something happened, those are hard cases but in all of them, the court has had facts and looked at the facts of the case to try to figure out how to apply it, whether that makes sense here in this situation there is a , million applications of this law that are perfectly fine. They pick some of the most vile possible hypotheticals, ignoring the provision of texas law they never addressed which says under texas law, if you dont want to hear content, they are allowed to make sure you never hear it. So all you have left, they never respond to it but it means all that is left is i dont want to hear this type of speech. Its just voluntary communication. Thats a telephone. Mr. Nielsen, you heard during the prior argument a lot of conversation about how broad floridas law is. The last argument about uber, etsy, what platforms does texas law cover . Classic platforms like youtube and facebook . That is what the opponent said facebook, twitter and , youtube. So apparently if it was the texas courts, if not them, who gets to understand what the scope of the law is . We would have to prove it at trial. The law says it applies to any platform with over 50 million users. Im not sure where some of the other platforms are on that. Youre making that judgment based on size. As soon is nothing about the definition. We were pointing out the florida law and defining what a platform does and how it works would encompass uber, for example. But you are assuming based on numbers . There is also a separate provision which defines social media platforms as a website open to the public, allowing the user to create an account and enabling users to communicate with other users. For the primary purpose of posting information content. So is it the position of texas that that definition covers the classic social media sites . Like sites like facebook and youtube . Yes, your honor. And it wouldnt sweep more broadly . Two things like etsy . I dont think so. If the District Court the District Court thought that it covered whatsapp. Do you think it does . I do not know the answer. We dont have discovery instead. These are the three we are sure are covered so it might be that there is another reason why its hard to do this on a facial basis. It could be whatsapp which looks like a telephone app to me. Within the big three, there are some email looking functions, arent there . I appreciate it is hard to do this because we do not have a record but i understood that facebook which you say would be covered has a messenger function. It looks like email. Wouldnt you have to do this at the level of the functionality of these various platforms rather than at those entity levels . Yes, your honor you would. ,and it is not just that. You would have to also go through different types of verbs including our statute for censoring, including the one they keep ignoring, which is the ability to receive the expression of someone else. You look at the text of the statute. Theories would mean that even if you wanted to lurk and listen and see what other people are saying, they can kick you off for any reason at all. You could have someone who never posted anything or their speech is identical to the speech of someone else, their theory as we can kick you off. That seems to be pretty far into the world of public accommodation. 303 was a narrow pace. If thats what it means, now we are really big. Lobster two point 2. 0. The idea that everything can be protected by the First Amendment. During the prior argument there was some discussion about , how difficult life will be if these injunctions are dissolved. A parade of horribles and expenses and difficulty with geofencing texas or florida. Can you address some of those concerns . Two answers, if i may. There is some suggestion that prohibition on discrimination against texas or part of texas is somehow a trap. Its not true. That is not with the statute says. There is a separate provision about the jurisdictional hub when you are doing business in texas. Even if texas tried to do that there is something cope personal jurisdiction you can leave for them. That argument is not true. The other part i think that is important about this is what is the remedy here . Its an injunction. There is no damages here. Its an injunction. We know it will not flood the courts because the injunction against the attorneys general is limited to the attorney general. There is private enforcement in of section seven. And we have a handle cases you dont get damages so its hard unless you have a really good case to be able to go to court and nobody will send you damages for prevailing. I think that matters a lot in terms of the real world consequences. They will have some lawsuits by the attorney general for injunction and if we cant prove that discrimination they will , prevail. Did to say they could stop doing business under texas under this law . Of course. Its true under the law but its also just true as a metal of matter of personal jurisdiction. Under the law, yes. How does that work when you talk about facebook . If somebody they send something into texas, are they doing business in texas . No, but that would be a fun jurisdictional case. The answer as i understand it is you have to purposely avail yourself of the forum. Merely because somebody can look at your website if you dont have a purposeful direction, thats generally not sufficient. But it is a worldwide sort of thing and people will be sending stuff left and right and you know that as a company. I do not see how they can wall off texas from the activities of the social media platforms. They can. They have the technological ability called geofencing which they can carve out. If they wanted to, they could probably cut off this building itself. More than that, it shows up there and if you want to have an account with facebook or twitter or others, there is a contractual relationship. They have customers that are in these places and people say they dont have any customers because they are not charging money. You are the product so they are taking your data and selling it to the advertisers just why its important that we recognize that if this algorithm is protected by the constitution, it can take that data and sell to people and have highly targeted ads. They explained that on page 12 of the new york reef. They picked the most vile example which is things we dont usually use in the facial posture and they say that means a whole lot of sales. There are many fine applications that the court needs to remember and not to seida. What about terror speech . The First Response to that is the provision of the statute they ignore which is no user has to receive anything they dont want. That still allows the communication of it. Most of the universe is gone but the next level of this under texas law, it would not be illegal. Im assuming a lot of the terrorism will be come join hamas or Something Like that. No, just the proal qaeda messages that were common pre9 11 and post9 11 button on this early incitement. We put aside the first two levels. They are allowed under the statute to pick any category they want. If they want to keep a category, thats their choice booth and wanted could they category out, they can do that as well. So they cant do it on a viewpoint basis, how does that work with terrorist speech . Its hard to say that they can predict the category. Assume that it is al qaeda. You cant very wells if gone through all of those things, all you have left are voluntary people wanting to talk to each other and people say horrible things on the telephone. I dont think weve ever thought that we will turn that off because you do not want the telephone providers to say they have the right to censor. I want to talk about orwell a little bit. My reaction coming to this case was similar to yours. I looked at this and i thought these are companies that have their own rights. We dont generally think of censorship as something from private people. Its the government. Heres how i came around on this and maybe it will persuade you or maybe not. I said this is something further up the food chain than that ordinary level of discourse. This is just the type of infrastructure necessary to have any kind of discourse at all. Thats like going back to the telegraph. This isnt the level of discourse where they make our arguments built on, this the infrastructure we need to have any sort of discourse at all. If we say we want to have that type of infrastructure not to have censorship on it, that would mean we would have to have a massively increased federal government because it would have to control infrastructure. Now you cant discriminate based on this kind of infrastructure of how things work. That is orwell. For me, for these kind of things like telephones or telegraphs or voluntary communication or the next big machine, those type of private communications have to be able to exist somewhere. There has to be some sort of way were we can allow people to communicate. Is that because of the modern Public Square . Some say there is a distinction between public and private and that is driving his analysis as to when and under what circumstances this kind of regulation can be done. Are you rejecting that because youre suggesting that they merge in the situation given the nature of communications . Im not. I will try again to be artful because its complicated. I think about the common carrier as a useful tool for discourse. We note there is a hard line to draw. Its hard to tell the difference between fair and miami herald. It will get down to the granular level but its hard to tell. It needs to have some direction of where to draw the lines. Common law and carriages that compass. Are you suggesting that a common carrier could never have First Amendment protected activity . Does this have to be not the level of entity but what are they doing in a particular circumstance . You need to say these are common carrier so everything they do is contact and therefore we can regulate it and i dont know that thats the way weve ever thought about it. Is what the court thought about it with telegraphs which i think is a useful way of thinking about it. My friend and the government says they are just transmitting speech but thats totally question begging. They have the technological ability not just to do that. The reason that cell phones dont screen your calls or telegraphs didnt im sorry to interrupt but i think you would agree with Justice Jackson that there might be some speech that these carriers would be their own. 100 . You have to take that function by function. Yes. The other part of this law which is important is to recognize that we you dont say one word about what they can say, i was to disaggregate the function. They can say whatever they want about specific posts or anything, thats fine. But there is a separate thing they do which is facilitating conversations between two people which is like a phone. I understand that. What we looked at in the past in the common carrier world is market power. How do you analyze that here . On the one hand, there are Network Effects that one would take account of in any analysis of market power. That might help you. On the other hand, this is a bit unlike a telegraph in the sense that there might only be one rightofway to run the wires. There might be some practical barriers. One could start a new platform at least in theory anytime. Fewer barriers to entry but market effects. If we are not talking about speech and just in the world of conduct, we are not talking the market power at all. We know that because cell phones are intensely competitive markets, yet there are common carriers. We are seeing there is some reason to focus on market power. It is true, this is not market power of there is just one bridge. But as an economic matter, there is no difference. Here is a simple way to look at it twitter has its platform and there are a lot of wouldbe competitors, including threads from meta, they invested massive amounts of money to try to break up the twitter monopoly and they failed miserably. There is some legislative bindings here about market power. What deference do we owe those . I would think considerable deference. This is a sovereign state. You dont really treat states like the sec. The state is entitled to make determinations as a matter of law. Obviously, it might be so far afield but i sure hope the states get some difference from this court. This may be the same question that Justice Gorsuch was asking, but does the nature of the economy matter to us . The social media platforms and the internet is an incredibly Dynamic Market. Government, maybe not so much. And yet, its sort of an Inflection Point to say the government has the authority by categorizing the participants in this Dynamic Market as common carriers to take over extensive regulation of them. Whether you are talked about railroads or telegraphs, it is not just moving, transportation, it is what the railroads look like, the safety they have to have. They have to have a whole range of things. In the wild west economy surrounding the social media platforms and the internet may be inapt. I dont know if it comes at a time when you got to make that transition or not, but thats a very big step when it comes the extent of government regulation. I think thats fair. My response will be that this is a facial preenforcement injunction. We should at least be able to make our showing on the facts. We are confident we can show not just market power but durable, extensive market power here. I dont think it will be all that difficult to make that showing. To the extent the market power is a requirement, i think they havent shown their likely to prevail on the merits as to that. We are happy to litigate that. Its hard to pick a few examples and say the whole thing failed. What besides market power i want to give you an opportunity to elaborate on common carrier. He said conduct, market power, what else . The main requirements of common carriage this is where common carriage accommodations may be cousins, not twins. It has to be open to the public, not a private associational group. You hold yourself out open to the public with nondifferentiated contracts. You have a contract with everybody. Thats the first one. The second is it has to be the type of industry that has traditionally been regulated as such. For common carriage, that is where you are talking about things like bridges and telecommunications. But then you get into the problem of having to draw the analogy. The chief justice just called it the wild west of the internet and the internet looks a lot different. Even these different platforms have different functionalities within it. When you extend, you got grist mills and railroads and cable companies. Each time you encounter something new that might qualify as a common carrier, you have to make the decision if it fits the bill or not. I can keep going further. That is why some courts said maybe there are some additional requirements to be put on common carriage. One is market power. I dont know how it works with cell phones. The other was it has to be vested in the Public Interest. Under that, we know if it is state action to block somebody from your twitter account, how could that not be affected by the Public Interest . Thank you. Justice thomas, Justice Alito. I have a problem with laws like this that are so broad that they stifle speech just on their face. Meaning i think that is with the government has been trying to say. If you have a particular type of speech that you want to protect against or promote, it would be one thing to have that kind of law. But we have a company here that is also a direct messaging app and theres no question your law covers them but the whole Business Model is to promote themselves to a particular message and groups of messages. So, they are not doing it indiscriminately. You are basically saying to them if they are out there and they are a common carrier, they cant have this kind of business. Two responses if i may. The first is as to the particular company, we only are talking about the three Largest Telecommunication Companies on earth. Ok. As to the second point you are agreeing with them . Yes, to the largest. Even if you agree with all of that, there is still applications of this law that should be allowed to go into effect. I dont see how they can say they can kick somebody off for offplatform speech of their grandmother. Or because they dont like it where you live in texas. If you live in el paso not dallas, you are not as valuable to the advertisers so we will kick you off. Surely, that cant be ok. Justice kagan . Justice kavanaugh . Upon the deference to the legislative findings point, my memory is that there is a trial. Yes, thats turner 2. Maybe there will be a paxton 2. Right, but there wasnt Just Congress said this, that is good to go, there was a trial about that . Sure, we are happy to go to trial. That is all i wanted to ask. On common carrier, if a company says we are not a common carrier and we dont want to be, can the state make them into a common carrier . Thats a great question. That was the first question i had when i came to this case. The answer is no. If you are not a common carrier, you cannot become one. That is why it is important to think of it as a compass to tell you where the line is. I would urge the court if you are interested, we have talked about reading the professors article. One thing that struck me as strange was wait, they have terms of service allow can they be a common carrier . This court addressed that very problem, the case that he cited is new york central v. Lockwood from 1873 where the court said you cant just get out of the common carriage by contract. If you are a common carrier, you are a common carrier unless you dont open your sl up to the public. It seems a little circular but i will end there. I just wanted to get a clarification. You said that facebook could geofence and pull out of texas . Of course. I was confused because mr. Clement was pointing out that you couldnt. Im looking at 143a. 0002 and it says you cant censor or receive information based on the users geographic location in this state or any part of the state. So you dont understand that to say that based on your location in texas, we are not going to let you post content . This is one of the prohibitions of the law, that they cant let me say it a different way. There is a provision of the law which is the jurisdictional hook that says who is subject to this law at all. If you choose to do business in texas, then this provision kicks in and you cant discriminate against people after youve chosen to do business in texas. If you dont want to do business in texas at all, thats a separate provision and you can get out of texas. This is the prohibition on what you cant do if you do to do business in texas, you cannot discriminate against somebody because they are in el paso. And doing business in texas is just allowing facebook users to sign up in texas . Is it facebook accepting Advertising Money from texas corporations . That question has not been resolved by any of the texas courts. As i read it, you have to have customers in texas. Youve entered into contractual relationships with texans. Justice jackson . Justice barrett had my same thought. I just want to clarify. So this doesnt speak to a business decision not to offer services in texas because their requirements are too burdensome . Instead, youre offering business in texas and everywhere else but you are prohibiting them from discriminating against people on the basis of their geography, in texas. Yes, your honor. Thank you. Rebuttal, mr. Clement . Just a few points in rebuttal. As to the common carrier, the two classic elements of common carrier status is missing here. One is you put transmitted or carried message from point a to point b. That is not is whats going on here. Disseminate means to spread broadly which means you are in the expressive Enterprise Business. There is zero tradition of treating entities in the expressive Enterprise Business as common carriers. The other factor is there is an essential facility like telephone wires went to every house in america so if you are kicked off, you were out of luck. This is the opposite situation where you have lots of other choices. This is not a common carrier. Justice thomas made that point. Second, public accommodation. I wouldnt be worried about any other accommodation law which prohibits discrimination on the basis of viewpoint. It applies exclusively to speakers. That is a First Amendment red flag that you are trying to limit speakers ability to discriminate on the basis of viewpoint. That is a frontal assault on editorial discretion. Every other public accommodation law i am aware of works differently. The third point is protecting kids. If you are concerned about protecting kids on the internet, that should be a vote in our favor in this case. If you cannot do viewpoint discrimination, that disables us from doing many of the Things Companies try to do to protect use online. The idea of we have to choose between if we have Suicide Prevention, we have to have suicide promotion to avoid discrimination. That should be a nonstarter and protecting kids is important even in the disclosure provision. There is a record on this case on page 161 of the joint appendix, a witness testified and said of these discloser provisions give a roadmap to predators to figure out why the messages are not getting two children. To figure out why they got bounced and worked their way around. This is an important point to end on the idea that somehow we are behind the eight ball because we brought a facial challenge. There is a proud tradition of facial challenges to vindicate First Amendment rights in this country. Thats how many of these cases have been brought. There is an equally proud tradition of getting a preliminary injunction against a law that is killing speech. As the general pointed out, the Party Presentation rules have to be foundational. If we had gone into the District Court and said this is unconstitutional on its face and they said no its not because of gmail, we couldve had a fair debate about that and modified our complaint of necessary. Thats a difficult issue. The only court that deals with this directly said gmail is not a common carrier. We could have litigated all of that but the plaintiffs burden is not to think of any theory to come up with an appeal and then foreclose it in District Court