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SCOTUS conservatives wary of red-state social media laws, but might protect email, direct messages

Justice Thomas suggests win for social media could threaten their Section 230 protections. Discriminating based on race can be OK, like Black History Month displays in bookstores, companies' lawyer says.

Published: February 26, 2024 11:00pm

The nondiscrimination rules that govern phone companies may be coming to social media platforms and applications with similar functionality – at least for email, direct messaging and similar communication services.

Supreme Court justices across the ideological spectrum pushed back on their trade associations' claims in back-to-back oral arguments Monday that Florida and Texas laws intended to protect conservative voices were unconstitutional on their face.

They suggested that NetChoice and the Computer and Communications Industry Association shot themselves in the foot by not bringing a challenge to the laws as applied to their members' expressive activities rather than continuing to insist the laws have no constitutional applications.

When Justice Elena Kagan floated a hypothetical viewpoint-neutrality law for DMs, Google's Gmail, Venmo, Dropbox and Uber but not "curated news feeds," their lawyer Paul Clement questioned its constitutionality because they are "still in the expressive business." 

Asked how de-platforming users was expressive and to whom, Clement told Justice Clarence Thomas it was "sending a message" to other users who would "see that they're not there anymore."

Thomas suggested NetChoice and CCIA consider the possibility of a Pyrrhic victory: undermining their members' immunity under Section 230 of the Communications Decency Act, which "does not necessarily touch on offensive material."

Self-described conservative NetChoice General Counsel Carl Szabo told "Just the News, No Noise" the case is crucial for those "concerned that the government will force you to say something you don't want to say … the type of restrictions that you see in authoritarian regimes across the world."

A ruling for Texas and Florida would undermine the hard-won protections for Christian small businesses such as 303 Creative, Szabo said. Florida's law in particular protects speech of "the pro-Hamas party" and people who support "child grooming," he said.

Florida Solicitor General Henry Whitacre tried to take advantage of the court's skepticism, telling Justice Samuel Alito the plaintiffs were "fairly cagey" as to which members they claim the Florida law covers.

They only included declarations from Etsy, Facebook and YouTube so "we're kind of litigating in the dark here," he said.

The justices didn't line up on partisan lines, though, with Democratic appointees wary of declaring tech platforms off-limits to even red-state regulation and Republican appointees repeatedly reminding the red states the First Amendment regulates governments.

The 11th U.S. Circuit Court of Appeals blocked Florida's law prohibiting dominant platforms from removing profiles for state political candidates and limiting who sees their posts. 

The 5th Circuit, by contrast, reversed an injunction against the Texas law, which prevents viewpoint discrimination on social media, distinguishing it from Florida's law because the former only prohibits "some censorship of all speakers" and lacks the steep monetary penalties in the latter.

The Supreme Court still blocked the Texas law from taking effect.

Oral arguments Monday suggested both could remain on hold while the lower courts evaluate their merits, particularly which venue the technology most closely resembles from the high court's precedents: newspapers, broadcasters, malls or parades.

That would mean new cases could keep bubbling up in the year or two the justices estimated it would take for the issues to return to the high court. 

First Liberty Institute noted the oral arguments in a Monday legal threat letter to Hulu, which twice rejected a video ad by a Texas church for a new service time because it violated the streaming platform's policy on what customer service called "religious indoctrination."

Yet Hulu inexplicably let through "a recent TikTok ad featuring a nun" who promises to teach users "how to pray" and shows her reading her Bible, the letter says – raising the same "consistency" issue that came up at the high court Monday.

"It makes me a little bit nervous" that NetChoice and CCIA imply that state laws cannot stop their members from censoring direct messages and email, Justice Amy Coney Barrett told Clement, a former George W. Bush solicitor general.

When Justice Neil Gorsuch asked Clement whether platforms could discriminate based on race, the lawyer responded that bookstores can create special Black History Month displays featuring only black authors, an "editorial decision at its heart."

Clement didn't deny that Uber could discriminate based on viewpoint when Alito asked.

"I don't think Uber is interested in doing that" except on something like an app comments section, Clement answered.

But the justices also expressed skepticism that companies as diverse as YouTube, Etsy and Elon Musk's X were analogous to law schools that banned military recruiters from campus, which the high court struck down, or a shopping mall that banned leafleting, which the California Supreme Court struck down.

Those law schools were receiving federal money, Chief Justice John Roberts retorted when Florida's Whitacre cited his opinion in Rumsfeld v. FAIR.

"I don't think it has much to do with the issues today at all," Roberts said, repeatedly emphasizing with Justice Brett Kavanaugh that government censorship is the overriding concern.

Unlike Facebook's content moderation decisions, the Pruneyard Shopping Center's leafleting ban didn't involve its own "expressive use" of the property, Kagan told Whitacre, who claimed both social media and malls were trying to create a "certain environment."

The platforms market themselves as "neutral forums" but "sing a very different tune" when they want to censor content, Whitacre argued, repeatedly comparing them to federally regulated common carriers such as Verizon. He said Florida's law has a "plainly legitimate sweep."

But Internet users rely on companies such as Etsy to make the sprawling content of cyberspace possible to find, Justice Sonia Sotomayor said. If Etsy "only wants to sell vintage clothes … they're gonna have to censor" extraneous subjects like politics, she said.

It's not apt to treat social media as publishers because 99% of posted content is "passed through without review," Whitacre said. But the other 1% gets people "extremely angry," such as content by "anti-vaxxers" and "insurrectionists," Justice Elena Kagan responded.

When Kavanaugh noted SCOTUS precedent does not require a "right of reply" in newspaper opinion sections, Whitacre emphasized the high court upheld "must carry" obligations for cable companies to include broadcast channels in their packages. The Turner decision was about antitrust, Kavanaugh retorted.

Musk's purchase of Twitter, now X, and changes to its content moderation decisions show it's not analogous to a common carrier, Kagan said. 

Users "were getting a new online newspaper" in a sense, with a drastically different speech environment that polarized them, she said.

"X is not what Twitter was and TikTok came out of nowhere," Clement said. 

Asked why consistent treatment of content was illegitimate, Clement told Justice Ketanji Brown Jackson that "some of these judgments are very tricky." But when Jackson noted Florida's law just prevents de-platforming of candidates, Clement protested that platforms have to ignore their repeated violations of terms of service and give them "pride of place," too.

Oral argument for the Texas law, the second of the day, was far shorter, with Texas Solicitor General Aaron Nielson arguing that telegraph operators' viewpoint discrimination prompted "a national scandal" that was repeating today.

"Everybody is online," and if the 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," he said. 

Nielson urged the high court not to impose "Lochner 2.0," referring to more than 30 years of decisions protecting economic liberties that ended when President Franklin Roosevelt threatened to pack the court. That could protect racial discrimination in online advertising and prevent Congress from "address[ing] the social media crisis devastating the lives of kids."

Justice Roberts, who is often a bellwether for the vote tally, told Nielson to read the First Amendment. The Lone Star State "is saying you must do this, you must carry these people, you've got to explain [content moderation decisions] if you don't."

He told Nielson to stop making the comparison to the "dumb pipes" of the telegraph, which had a "particular[ly] compelling type of monopoly." If the question is who decides "who can speak or who can't speak on these platforms … the First Amendment has a thumb on the scale," Roberts said.

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