Moody v. Netchoice, LLC
Oral argument transcript · No. 22-277 · October Term 2023 · argued February 26, 2024 · the petitioner won
Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court
Advocates
- Henry C. Whitaker, State Solicitor General, for the petitioner
- Paul D. Clement, Alexandria, Virginia, for the respondent
- Elizabeth B. Prelogar, Solicitor General of the United States, amicus curiae supporting the respondent
Transcript
From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.
Chief Justice Roberts: We will hear argument first this morning in Case 22-277, Moody versus NetChoice. Mr. Whitaker. ORAL ARGUMENT OF HENRY C. WHITAKER ON BEHALF OF THE PETITIONERS
Henry C. Whitaker: Mr. Chief Justice, and may it please the Court: Internet platforms today control the way millions of Americans communicate with each other and with the world. The platforms achieved that success by marketing themselves as neutral forums for free speech. Now that they host the communications of billions of users, they sing a very different tune. They now say that they are, in fact, editors of their users' speech, rather like a newspaper. They contend that they possess a broad First Amendment right to censor anything they host on their sites, even when doing so contradicts their own representations to consumers. But the design of the First Amendment is to prevent the suppression of speech, not to Official 1 enable it. That is why the telephone company and the delivery service have no First Amendment right to use their services as a choke point to silence those they disfavor. Broadly facilitating communication in that way is conduct, not speech, and if Verizon asserted a First Amendment right to cancel disfavored subscribers at a whim, that claim would fail no less than the claimed right to censorship failed in Pruneyard versus Robins and Rumsfeld versus FAIR. Social networking companies too are in the business of transmitting their users' speech. Their users are the ones who create and select the content that appears on their sites. The plat -- the -- the platforms, indeed, disavow responsibility for that conduct in their terms of service. The platforms do sort and facilitate the presentation of user speech. But this Court just last term, in Twitter versus Taamneh, and the platforms themselves in Gonzalez versus Google describe those tools as little more than passive mechanisms for organizing vast amounts of third-party content. The platforms do not have a First Official 1 Amendment right to apply their censorship policies in an inconsistent manner and to censor and deplatform certain users. I welcome your questions.
Justice Thomas: Counsel, it would seem that this case is a facial challenge, and to some extent, it relies on the overbreadth doctrine, but that seems to be an odd fit since Respondent represents virtually all of the platforms and that it would be easy enough for a platform who's affected to bring an as-applied challenge. Would you comment on that or at least address the fact that this is a facial challenge?
Henry C. Whitaker: Certainly, Your Honor. I do think that's a very significant aspect of this case. It comes to the Court on a facial challenge, which means that the only question before the Court is whether the statute has a plainly legitimate sweep. I actually don't understand them, Your -- Your Honor, to -- to be making an overbreadth challenge, which, as I understand it, would -- would rely on the effects on third parties. As Official 1 I understand it, they're principally relying on the -- effects on their members. If they were bringing an overbreadth challenge, they would -- they would have to show various third-party --
Justice Thomas: Well, I think -- how would they do that on -- when they haven't shown that there are no -- there's no way that this statute can be applied that's consistent with the Constitution? Have they met that?
Henry C. Whitaker: They -- they certainly have not, Your Honor. I mean, and -- and we -- we think the -- the statute has, indeed, a plainly legitimate sweep. And, certainly, there are a number of the platforms that are open to all comers and content, much like a traditional common carrier. And just -- just as a traditional common carrier, consistent with the First Amendment, would be subject to hosting requirements, non-discrimination requirements, so too we think that the platforms that satisfy that characterization, which are a number of them, absolutely would give this statute a plainly legitimate sweep.
Justice Sotomayor: Can -- can I -- Official 1 this is such a odd case for our usual jurisprudence. It seems like your law is covering just about every social media platform on the Internet, and we have amici who are not traditional social media platforms, like smartphones and others who have submitted amici brief, telling them that readings of this law could cover them. This is so, so broad, it's covering almost everything. But the one thing I know about the Internet is that its variety -- variety is infinite. So at what point in 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 what exactly the sweep is and telling us how there is a legitimate sweep of virtually -- or -- or a meaningfully -- a swath of cases that this law could cover but not others?
Henry C. Whitaker: Well -- well, let me, Your --
Justice Sotomayor: Where -- when does the burden shift to the state, when it write -- when it writes a law so broad that it's indeterminate? Official
Henry C. Whitaker: I don't think so, Your Honor. I still think it is their burden, as the plaintiffs challenging an action of a sovereign state legislature, to show that the law lacks a plainly legitimate sweep. But let me just say a word about the -- the breadth of the law. The -- the legislature did define the term "socia media platform," which is part of what triggers the law's application, but -- but that -- the breadth of that definition, which -- which wouldn't cover every single website, it -- it would -- it would cover certain large websites with large revenues and subscribers and the -- and -- and the like, but the breadth of the law, apart from that definition, is significantly narrowed by the fact that the substantive provisions of the law are regulating websites that host user-generated content. That's what the substantive provisions of the statute apply to.
Justice Sotomayor: So let me talk about Etsy. Etsy is a marketplace like -- if -- I'm going to try to analogize it to physical space, which I think in this area is a little Official 1 crazy because it -- yes, in some ways, this is like an online bookstore or online magazines, online newspaper, online whatever you want to call it, an online supermarket, but it's not because, even though it has infinite space, it really doesn't because viewers, myself included, or users can't access the millions of things that are on the Internet and actually get through them and pick the things we want because there's too much information. So we're limited by human attention spans. So are they. So our theories are a little hard, but let's look at Etsy. Etsy is a supermarket that wants to sell only vintage clothes, and so it is going to and does limit users' content. It's a free marketplace, it's open to everyone, but it says to the people who come onto its marketplace we only want this kind of product. They're going to have to censor. They're going to have to take people off. They're going to have to do all the things that your law say they can't do without all of these conditions. Why is that? Why should we be permitting and under what level of scrutiny Official 1 would we be looking at this broad application of this law that affects someone who all they want to do is sell a particular kind of product and they have community standards and they tell you that you -- they don't want you to curse, they don't want you to talk politics, they don't want you to do whatever, all they want you to do is sell your product. But, if they're a public marketplace, which they are, they're selling to the public, this law would cover them.
Henry C. Whitaker: I think that's right, Your Honor, but -- but again let me just say a word about how the law might apply to Etsy. First of all, it wouldn't regulate the goods Etsy is offering. What our law regulates is the moderation of user-generated content. So it would only apply to Etsy to the extent that they -- and -- and I'm not -- I'm not sure to what extent it actually would apply to Etsy. I guess it would apply somewhat, but I guess people are uploading user-generated conduct in connection with the sale of goods. And that's the conduct that it would regulate. It doesn't limit what goods Etsy can -- can limit its marketplace to. Official 1 Let me just say a word about that. It --
Justice Sotomayor: Well, it opens it up for sale of goods and it tells its users --
Henry C. Whitaker: Well --
Justice Sotomayor: -- don't, please, speak about politics because that's not what our marketplace is about.
Henry C. Whitaker: And --
Justice Sotomayor: That's viewpoint discrimination. This falls under a whole lot of your listings and bans and disclosure requirements. Why are we imposing that on something like this?
Henry C. Whitaker: Well -- well, in Pruneyard versus Robins, Your Honor, this -- this Court held that the State of California could regulate the speech-hosting activity of a shopping mall which was hosting speech as an incident to --
Justice Sotomayor: But not inside the stores. We said that they could come, but if they go inside the store, we didn't say anything that free speech -- that someone could stand -- Official 1 stand on a platform in the middle of the store and scream out their political message. We said the common areas, where we're permitting others to speak, we're going to let this particular speaker speak anything he or she wants. That's why I'm afraid of all of these common law rules that you're trying to analogize to.
Henry C. Whitaker: Well -- well -- well, Your Honor, I do think Etsy is similar insofar as it is, in fact, hosting speech and some expression as an incident to some other commercial enterprise. And I think that, if anything, makes Etsy's speech interests even weaker than the -- the social --
Justice Sotomayor: I've monopolized your --
Chief Justice Roberts: Counsel, you began your presentation talking about concerned about the power, market power and ability of the social media platforms to control what people do, and your response to that is going to be exercising the power of the state to control what goes on on the social media platforms. And I wonder, since we're talking Official 1 about the First Amendment, whether our first concern should be with the state regulating what, you know, we have called the modern public square?
Henry C. Whitaker: Well, I think you certainly should be concerned about that, Your Honor. What -- what I would say is -- is that the -- the kind of regulation that the State of Florida is imposing is one that is familiar to the law. When you have businesses that have generally opened their facilities to all comers and content, this is the way that traditional common carrier has worked -- regulation has worked for centuries. If you were an innkeeper and you held yourself out as open to the public, you could indeed be permitted to act in accordance with that voluntarily chosen business model. So I certainly think the Court should proceed carefully, but one thing the Court, I think, it's important to keep in mind is that there is an important First Amendment interest precisely in ensuring that large powerful businesses like that that have undertaken to host massive amounts of speech and have the power to silence Official 1 those speakers, the state has an interest, a First Amendment interest, in promoting and ensuring the free dissemination of ideas.
Chief Justice Roberts: Is there any aspect of social media that you think is protected by the First Amendment?
Henry C. Whitaker: Yes, Your Honor. I can -- I can certainly imagine platforms that would be subject to this law that would have -- would indeed have First Amendment rights. I mean, we point out in our brief that when -- we think that if you had a -- an Internet platform that, indeed, had a platform-driven message, was selective on the front end, Democrats.com, I think that would be a very different kind of analysis compared to a company like Facebook or YouTube, who is in the business of just basically trying to get as many eyeballs on their site as possible.
Justice Kagan: But why is it different? You -- you know, when we talked -- when we had the parade case, we said they don't have a lot of rules, but they have some rules, and we're going to respect the rules that they do have. Even though they let a lot of people Official 1 come in, they don't let a few people come in, and that seems to be quite important to them. And similarly here, I mean, Facebook, YouTube, these are the paradigmatic social media companies that this law applies to, and they have rules about content. They say, you know, you can't have hate speech on this site. They say you can't have misinformation with respect to particular subject matter areas. And they seem to take those rules and -- I mean, you know, somebody can say maybe they should enforce them even more than they do, but they do seem to take them seriously. They have thousands and thousands of employees who are devoted to enforcing those rules. So why aren't they making content judgments, not quite as explicit as the -- the kind in your hypothetical, but definitely they're making content judgments about the kind of speech that they think they want on the site and the kinds of speech that they think is intolerable.
Henry C. Whitaker: Well -- well, there's a lot -- lot in there, Your Honor. May -- maybe I can start with the Hurley case. I mean, I -- I Official 1 think what -- what was going on in Hurley, I think, is that you had a parade that was --
Justice Kagan: Could -- could you -- maybe just start with the more general question.
Henry C. Whitaker: Sure -- sure -- sure -- for sure.
Justice Kagan: I mean, I'm happy for you to talk about Hurley. I don't want to, you know, get in your way.
Henry C. Whitaker: I'll start wherever you want. It's your time, not mine, Your Honor. So, yeah. So, certainly, the more -- the broader question about rules of the road and the like. Common carriers have always conducted their businesses subject to general rules of decorum. I think the fact that the platforms have these general rules of decorum, the fact remains that upwards of 99 percent -- for all that content moderation, that's really a product of the fact that they have so -- they host so much content. But the fact remains that 99 -- upwards of 99 percent of what goes on the platforms is basically passed through without review. Official 1 Yes, they have spam filters on the front end and the like, and that's not uniquely --
Justice Kagan: But -- but that 1 percent seems to have gotten some people extremely angry. You know, the 1 percent that's like we don't want --
Henry C. Whitaker: Well --
Justice Kagan: -- anti-vaxxers on our site --
Henry C. Whitaker: Sure.
Justice Kagan: -- or we don't want insurrectionists on our site. I mean, that's what motivated these laws, isn't it? And that's what's getting people upset about them --
Henry C. Whitaker: Right.
Justice Kagan: -- is that other people have different views about what it means to -- to provide misinformation as to voting and things like that, and, you know, that's the point. There are some sites that can say this kind of talk about vaccination policy is good and some people can say it's bad, but it's up to the individual speakers. Official
Henry C. Whitaker: The fact that some people are angry about the content moderation policies doesn't show that is their speech. And -- and my friends talk about their advertisers. Well, we don't know whether the advertisers think it's their speech or whether they just disagree with the speech. And their advertisers and people who are angry with speech don't get a heckler's veto on Florida's law. But even more broadly than that, I mean, we know that mere -- the -- the fact that a hosting decision is ideologically charged and causes controversy can't be the end of the game because I think Rumsfeld versus FAIR would have had to come out the other way then, because, in Rumsfeld, certainly, the law schools there felt very strongly that the military were being bigots and they didn't want them on campus. And yet this Court did not look to the ideological controversy surrounding those decisions. Instead, it looked at objectively whether the law schools were engaged in inherently expressive conduct.
Chief Justice Roberts: Well, it looked at what -- the fact that the schools were Official 1 getting money from the federal government, and the federal government thought: Well, if they're going to take our money, they have to allow -- allow military recruiters on the campus. I don't think it has much to do with the issues today at all.
Henry C. Whitaker: Well -- Mr. Chief Justice, it's difficult for me to argue with you very much about what Rumsfeld versus FAIR means. (Laughter.)
Henry C. Whitaker: But let me just take a crack because, I mean, I -- I think, as I -- as I read your opinion for the Court, you didn't rely, actually, on the funding aspect of the case to reach the conclusion that what was going on there was not First Amendment protected conduct. You were willing to spot them that this -- the -- the question would be exactly the same if it were a direct regulation of speech as opposed to a funding condition. So I absolutely think that the analysis in that case directly speaks to this. And just -- just --
Justice Kavanaugh: Can I -- can I ask you about a different precedent, about what we Official 1 said in Buckley? And this picks up on the Chief Justice's earlier comment about government intervention because of the power of the social media companies. And it seems like, in Buckley, in 1976, in a really important sentence in our First Amendment jurisprudence, we said that "the concept that [the] government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment...". and that seems to be what you responded with to the Chief Justice. And then, in Tornillo, the Court went on at great length as well about the power of then newspapers, and the Court said they recognized the argument about vast changes that place in a few hands the power to inform the American people and shape public opinion and that that had led to abuses of a -- bias and manipulation. The Court accepted all that but still said that wasn't good enough to allow some kind of government-mandated fairness, right of reply or anything. So how do you deal with those two Official 1 principles?
Henry C. Whitaker: Sure -- sure, Justice Kavanaugh. Well, first of all, if you -- if you agree with me with our front-line position that what is being regulated here is conduct, not speech, I don't think you get into interests and scrutiny and all that. I do think that the law advances the -- the First Amendment interests that I mentioned, but I think the -- the -- the -- that interest, the interest that our law is serving, if you did get to a point in the analysis that required consideration of those interests, our interests --
Justice Kavanaugh: Do you agree then, if speech is involved, that those cases mean that you lose?
Henry C. Whitaker: No, I don't agree with that, and -- and the reason I don't agree with that is because the interests that our laws -- serve are -- are legitimate, and -- and it's -- and it's hard because different parts of the law serve different interests. But I think the one that -- that sounds in the -- in your concern that is most directly implicated would be the hosting requirement applicable to journalistic Official 1 enterprises. So one provision of the law says that the platforms cannot censor, shadow ban, or deplatform journalistic enterprises based on the content of their publication or broadcast. And that serves an interest very similar to the interest that this Court recognized as legitimate in Turner when Congress imposed on cable operators a must-carry obligation for broadcasters. And -- and just as a broadcaster -- and -- and what the Court said was there was not just a legitimate interest in promoting the free dissemination of ideas through broadcasting, but it was a -- indeed a -- a compelling interest, a -- a highly compelling interest. And so I think the journalistic enterprise provision serves a -- that very similar issue. But there are also other interests that our law serves. For example, the consistency provision, Your -- Your Honor, is really a consumer protection measure. It -- it's sort of orthogonal to all that. The consistency provision, which is really the heart of our law, just says to the -- the platforms: Official 1 Apply your content moderation policies consistently. Have whatever policies you want, but just apply them consistently.
Justice Kavanaugh: Could the government apply such a policy to publishing houses and printing presses and movie theaters about what they show? Bookstores, newsstands?
Henry C. Whitaker: No, no --
Justice Kavanaugh: In other words, be consistent in what kinds of content you exclude? Could that be done?
Henry C. Whitaker: I -- I -- I don't think so, Your Honor.
Justice Kavanaugh: And why not?
Henry C. Whitaker: Well -- well, I think that there is -- is -- the consumer -- here, the -- the social media platforms, their terms of service, their content moderation policies are really part of the terms under which they are offering their service to users. I don't think that that really -- that that paradigm really fits in what Your Honor is -- is talking about. So -- but I -- but, look, we agree, we certainly agree that a newspaper, a book in a bookstore is engaging in inherently expressive Official 1 conduct. And our whole point is that these social media platforms are not like those. And why are --
Justice Jackson: But doesn't it depend on exactly what they're doing? I mean, I -- I guess the hard part for me is really trying to understand how we apply this analysis at the broad level of generality that I think both sides seem to be taking here. I mean, you say what -- what is being regulated here is conduct, not speech. Well, I guess maybe if you're talking about Facebook's news -- news feed feature. But there are lots of other things that Facebook does that -- you know, that might be speech, but then there might be other things that Facebook does that doesn't qualify as speech. So don't we have to, like, drill down more in order to really figure out whether or not things are protected?
Henry C. Whitaker: Actually, I don't think so. I think that that -- that precise ambiguity strongly favors our position, Your Honor, because, in the posture of this facial challenge, all you need to look at is whether Official 1 there are at least some activities --
Justice Jackson: No, but that's -- no, no, no. I guess what I'm saying is you mentioned the Pruneyard case or the FAIR case, excuse me. I mean, we didn't say that law schools, you know, as a categorical matter are, you know, always engaged in unprotected speech. We looked at the particular thing. This was a fair and, you know, the law school was saying, we don't want these certain entities in it. I hear you suggesting that we can just say, you know, Facebook is a common carrier and, therefore, everything it does qualifies as conduct and not speech. And I don't think that's really the way we've done this in our past precedents. So can you speak to that?
Henry C. Whitaker: Sure -- sure. Certainly, that's not what we're saying, Your Honor. I -- I completely agree with you that it's very important to isolate what conduct the particular -- each particular provision of the law is regulating.
Justice Jackson: Not the law, the entity. What is the entity doing?
Henry C. Whitaker: Well -- Official
Justice Jackson: Like we have to do --
Henry C. Whitaker: Sure.
Justice Jackson: -- an intersection of what the law says they can't do and what in particular they are doing, right?
Henry C. Whitaker: Well, and I guess the right level of generality and the general -- the level of generality that's sufficient, I think, to conclude that the law has a plainly legitimate sweep is we are talking about the -- the social networking companies' activities in -- in content-moderating user-uploaded content. That -- that, I think, is the relevant activity, and -- and that is what -- that is -- that activity --
Justice Jackson: All right. So what do you do about -- what do you do with LinkedIn has a virtual job fair and it has some rules about who can be involved. That seems to map on, I would think, to the FAIR case. Is that what you're saying?
Henry C. Whitaker: Well, I -- I -- I don't -- I don't think so. I don't think it would map on to our theory in this case because it sounds Official 1 like to me, and I'm not totally aware of all the facts of LinkedIn there, but --
Justice Jackson: Yeah.
Henry C. Whitaker: -- if I understand --
Justice Jackson: I think that's a problem in this case.
Henry C. Whitaker: Well --
Justice Jackson: We're not all aware of the facts --
Henry C. Whitaker: Well --
Justice Jackson: -- of what's happening.
Henry C. Whitaker: -- exactly. And I -- I think that that -- that is one of the -- the -- the -- the reasons why this -- this facial challenge is -- has been very confusing to defend, because we kind of don't -- we kind of don't know what to defend against.
Justice Gorsuch: Mr. Whitaker, on -- on that score, so we have some -- in a facial challenge, we have a bit of a problem because different legal principles apply in different factual circumstances, and there are many different defendants or plaintiffs here, sorry, with different services. So that -- that's a Official 1 complicating feature on a -- on a facial challenge. But here's another one for you: What about Section 230, which preempts some of this law? How much of it? And how are we to account for that complication in a facial challenge?
Henry C. Whitaker: Well --
Chief Justice Roberts: Why don't you answer the question, then we'll move on.
Justice Gorsuch: Briefly. Yeah.
Henry C. Whitaker: Well -- well -- well, I -- I think that the Court should answer the question presented, I guess.
Justice Gorsuch: But how can we do that without looking at 230?
Henry C. Whitaker: Well, because I -- I -- I don't -- I don't think that there's any -- some of this was briefed at the -- at the cert stage, Your Honor. I don't think that the -- the Section 230(c) preemption -- (c)(2) preemption question is really going to dispose of the case. You know, the district court actually reached the Section 230 issue but concluded that it still had to reach the constitutional issue anyway. Official
Justice Gorsuch: I -- I'll get back to this in my turn. Thank you.
Chief Justice Roberts: Thank you, counsel. Justice Thomas, anything further?
Justice Thomas: Mr. Whitaker, the -- could you give us sort -- your best explanation of what you perceive the speech to be in this case or allege to be in this case?
Henry C. Whitaker: Well -- well, as I understand their contention, it's -- it's the -- this idea that the platforms, in having content moderation policies, are somehow creating a welcoming community, I guess. It seems to me, at that level of generality, that can't really be a cognizable message -- that seems to me more like a tautology than -- than a message. Basically, we want the people on our sites that we want. And -- and -- and I think, at that level of generality, certainly, the Pruneyard case would have to come out the other way because, in Pruneyard, the mall certainly wanted to ban leafleting because it wanted to create a certain environment, and yet this Court said Official 1 that they did not have a -- a First Amendment right to do that.
Justice Thomas: I -- I think what I was more interested in is, you know, we're talking -- we're using broad terms like "content moderation," and throughout the briefs, you have "shadow banning," "deprioritizing," and all sorts of things. And I -- I guess, with these facial challenges, I always have a problem that we don't -- we're not talking about anything specific. In an as-applied challenge, at least we know what's in front of us and what your interpretation or at least the state's interpretation of its law is in that case. Now we're just speculating as to what the law means. So I'm just trying to get more of a -- more specificity as to what the speech is in this case. They are censoring as far as I can tell, and I don't know of any protected -- speech interests in censoring other speech, but perhaps there is something else.
Henry C. Whitaker: Well, I don't think that they do have a -- certainly not a speech interest. I mean, at -- at most, I think that Official 1 they would have some interest in the inherently -- allegedly inherently expressive conduct of speech. You know, that way of looking at it I take it my friends from the United States agree with. But we do not think they have a message in censoring and deplatforming users from the sites any more than the law schools in FAIR had a message in booting military recruiters off campus.
Justice Thomas: Thank you.
Chief Justice Roberts: Justice Alito?
Justice Alito: Did the plaintiffs raise content -- I -- I'm sorry -- overbreadth below?
Henry C. Whitaker: No -- no, Your Honor. I'm not a -- I -- I -- I -- I can't -- I couldn't find the word "overbreadth" in any of their pleadings.
Justice Alito: Where in the record would -- should I look to find a list of all of the platforms that are covered by the Florida statute?
Henry C. Whitaker: Well -- well, Your Honor, I'm afraid that doesn't appear in the -- in the record because I think that the -- the Official 1 platforms were fairly cagey about which of their members they thought the statute applied to. The -- the record only contains three platform-specific declarations: Etsy, Facebook, and YouTube. So that -- that's part of the problem in this case, is that we -- we -- we don't have a sense of -- it -- the record has not been fully developed to answer that question, so we're kind of litigating in the dark here. And this was litigated on a preliminary injunction at breakneck speed without the -- the State having a chance to take discovery, and that's part of the reasons why some of these questions are difficult to answer.
Justice Alito: Well, I'll ask Mr. Clement that argument -- that question too. As to the platforms that are covered, where in the record would I look to find a list of all of the functions that those platforms perform?
Henry C. Whitaker: I'm not aware in the record, Your Honor, of a -- an all-encompassing list of all the functions the platforms perform. There certainly are, as I mentioned, three Official 1 platform-specific declarations, also some more general declarations that talk about some of their -- their members more generally, but it's not sort of all in one place. I apologize, Your Honor.
Justice Alito: Does your law cover any websites that primarily or even exclusively engage in non-expressive conduct?
Henry C. Whitaker: I think it does cover websites that engage in primarily non-expressive conduct. I mean, we would -- we would characterize the social networking platforms as engaging in primarily non-expressive conduct in -- in -- insofar as they are hosting speech, just like a traditional common carrier is not engaged in -- in expressive conduct in transmitting the communications of its subscribers. And we do think our law would apply to certainly the -- the largest -- at a minimum, the largest social networking platforms.
Justice Alito: What is the right standard for a facial challenge if we think that your law implicates a -- a -- a portion, a percentage of expressive conduct and a portion Official 1 of non-expressive conduct? How should we analyze that?
Henry C. Whitaker: I think that you would -- that -- so the -- there's a -- there's --
Justice Alito: So we need a -- we need a numerator and a denominator there, I think. What -- what would they be?
Henry C. Whitaker: Well, I -- I don't think there isn't -- that the standard would have a numerator and a denominator. Actually, Your Honor, in this context, we would view it as the question being whether the statute has a plainly legitimate sweep without the need to compare applications. As I understand this Court's precedents, the numerator/denominator comparison would be something you would do if there were an overbreadth claim in this case, but I don't understand my friends to be making an overbreadth claim. Maybe they'll say something different, but I could not find the word "overbreadth" in their -- in their pleadings. In the Texas case, they do have a footnote suggesting that they made an overbreadth claim in the alternative. Official
Justice Alito: Thank you.
Chief Justice Roberts: Justice Sotomayor? Justice Kagan?
Justice Kagan: I -- I just wanted to sort of understand your position, and I want to narrow this to the paradigmatic social media companies' sort of news feed postings, Facebook, YouTube, Twitter/X. So suppose that -- that I say -- just take this as a given, all right? You can argue with the facts, but don't. (Laughter.)
Justice Kagan: Suppose that I say, for the most part, all these places say we're open for business. Post whatever you like and we'll host it. But there are exceptions to that and clearly content-based exceptions, which the companies take seriously. So let's say they say there we think that misinformation of particular kinds is extremely damaging to society -- misinformation about voting, misinformation about certain public health issues -- and so too we think that hate speech or bullying is Official 1 extremely problematic. And so we are going to enforce rules against this. They're only going to apply to a small percentage of the things that people want to post. For the most part, they're open for business. But we are serious about those content-based restrictions. All right? So, in that world, why isn't that a -- a -- you know, a -- a -- a classic First Amendment violation for the state to come in and say, we're not allowing -- going to allow you to enforce those sorts of restrictions even though, you know, you're basically -- it's -- it's like an editorial judgment, you're excluding particular kinds of speech?
Henry C. Whitaker: Well -- well, Your Honor, I think, if you -- I take your -- your hypo to be assuming that it's -- it's First Amendment protected activity, and I think that what you would do in that instance, you would have to run intermediate scrutiny -- under Turner. And -- and the analysis regrettably --
Justice Kagan: So you -- don't say what -- what I take it to be First Amendment activity. I mean, that -- do you take it to be Official 1 First Amendment activity?
Henry C. Whitaker: No, no. That's our whole point. I mean, again --
Justice Kagan: Even though they're saying, yeah, we're -- we -- we have -- we -- we are a big forum for lots of messages but not for those kinds of messages. We want to exclude those kinds of messages. Why isn't that First Amendment, a First Amendment judgment?
Henry C. Whitaker: I mean, I -- I -- I think it's very -- the -- the Court held otherwise, I think, in Pruneyard because, there, there was an editorial policy against leafleting too. And, again, I don't buy --
Justice Kagan: No, that was just about leafleting and the mall owner didn't have any expressive views. I'm taking as a given that these -- that -- that YouTube or Facebook or whatever has expressive views, there are particular kinds of expression defined by content that they don't want anywhere near their site.
Henry C. Whitaker: But -- but I think, Your Honor, you still would have to look at the Official 1 objective activity being regulated, namely, censoring and deplatforming, and ask whether that expresses a message. And because they host so much content, an objective observer is not going to readily attribute any particular piece of content that appears on their site to some decision to either refrain from or to censor or deplatform. And that makes --
Justice Kagan: Do you think so as to this -- here, this is a real-world example. Twitter users one day woke up and found themselves to be X users and the content rules had changed and their feeds changed, and all of a sudden they were getting a different online newspaper, so to speak, in a metaphorical sense every morning, and a lot of Twitter users thought that was great, and a lot of Twitter users thought that was horrible because, in fact, there were different content judgments being made that was very much affecting the speech environment that they entered every time they opened their app.
Henry C. Whitaker: Your Honor, that does -- respectfully, that -- that does not Official 1 answer whether they have a message in their censorship any more than, you know, the -- the -- I'm sure people objected, again, quite strenuously to the fact that the law schools were permitted to interview on campus. I'm sure people wanted to ban leafleting in the -- at the mall in Pruneyard. And -- and that does not give them a message. And that -- I think the reason for that is, if they are not carefully selecting the content in the newspaper, they don't have a message in the existence, in the mere existence, of the content on the site.
Justice Kagan: Thank you, General.
Chief Justice Roberts: Justice Gorsuch?
Justice Gorsuch: I just wanted to give you a chance to finish up on the Section 230 point. I think it's Section 6 of your law that says that the law is not enforceable to the extent it conflicts with Section 230.
Henry C. Whitaker: Sure, sure -- sure.
Justice Gorsuch: So why wouldn't we analytically want to address that early on in these proceedings, whether in this Court or a Official 1 lower court?
Henry C. Whitaker: Well -- well, the law --
Justice Gorsuch: And does that complicate our attempt to --
Henry C. Whitaker: Sure.
Justice Gorsuch: -- resolve things in a facial challenge?
Henry C. Whitaker: Sure -- sure, Your Honor. And I think the -- the reason is -- is because the law is not facially at least preempted under -- under 230(c)(2), which principally regulates takedowns. One reason for that is we -- we understand 230(c)(2) not to sanction viewpoint-based content moderation under the rubric of otherwise objectionable. And there's a very nice article that Professor Volokh has on this in the -- in the Journal of Free Speech Law where he lays this out. And we obviously haven't briefed this, Your Honor. The second point I would make about Section 230(c)(2) is that it only applies to good-faith content moderation, so to the extent our law prohibits them from engaging in Official 1 bad-faith content moderation, that is absolutely not preempted by 230(c)(2). And one way to understand their constitutional claims in this case, because they have an expansive view of Section 230(c)(2), is that they are in essence asserting a constitutional right to engage in bad-faith content moderation because they already have the right to engage in a lot of moderation of illicit content under 230(c)(2) as long as they do so in good faith.
Justice Gorsuch: Okay. And -- and then just to follow up on Justice Kagan's line of questioning, you've analogized to common carriers and telegraphs in particular. Why is that an apt analogy here, do you think?
Henry C. Whitaker: I think it's an apt analogy, Your Honor, because the -- the -- the principal function of a social media site is to enable communication, and it's enabling willing speakers and willing listeners to talk to each other. And it's true that the posts are more public, but I don't think that Verizon would Official 1 gain any greater right to censor simply because it was a conference call. I don't think that UPS or FedEx would gain a greater right to censor books because it was a truckload of books as opposed to one book. And so that -- the analogy is indeed apt. And -- and so there's been talk of market power. Market power is not an element, I think, of traditional common carrier regulation, and, indeed, some entities that are regulated as common carriers, like cellphone providers, operate in a fairly competitive market.
Justice Gorsuch: Thank you.
Chief Justice Roberts: Justice Kavanaugh?
Justice Kavanaugh: In your opening remarks, you said the design of the First Amendment is to prevent "suppression of speech." And you left out what I understand to be three key words in the First Amendment or to describe the First Amendment, "by the government." Do you agree "by the government" is what the First Amendment is targeting?
Henry C. Whitaker: I do agree with that, Your Honor, but I don't agree that there is no Official 1 First Amendment interest in allowing the people's representatives to promote the free exchange of ideas. This Court has recognized that as a legitimate First Amendment interest in the Turner case and all the way going back to the Associated Press case when --
Justice Kavanaugh: Well, in the Turner case, the intervention was, the Court emphasized, unrelated to the suppression of speech, the antitrust-type intervention there. So I'm not sure when it's related to ensuring relative voices are balanced out or there's fairness in the speech or balance in the speech, that that is covered by Turner. Do you agree with that?
Henry C. Whitaker: No, I don't agree with that, Your Honor. Our -- our -- our interest and our law --
Justice Kavanaugh: What did Turner mean by "unrelated to" the suppression of speech?
Henry C. Whitaker: Well -- well, we don't view our law as advancing interests that are related to the suppression of speech. We think that the interests, for example, in protecting Official 1 journalistic enterprises from being censored, from -- from MSNBC being censored because an Internet platform doesn't like a broadcast it showed on -- on its station the other day, that -- that is just an interest in preventing from being silenced. It's not an equalizing interest. It's giving them a chance.
Justice Kavanaugh: On the editorial control point, you really want to fight the idea -- and I understand -- that editorial control is the same thing as speech itself. And you've emphasized Pruneyard over and over again. But we have a whole other line of cases, as you're aware, of course, Hurley, PG&E, Tornillo, Turner, which emphasize editorial control as being fundamentally protected by the First Amendment. And I understood the line between Pruneyard on the one hand and those cases on the other to be whether you were involved in a speech, communications business, as opposed to a shopping center owner, which is the other side of the line. Can you respond to those cases?
Henry C. Whitaker: Sure. I guess I don't Official 1 dispute the general principle of editorial control. I just don't think that this -- that the social media platforms are engaged in editorial control. And, again, the -- the -- the recruiters -- the law schools, excuse me, in Rumsfeld versus FAIR argued that they were exercising editorial control when they booted military recruiters off campus and invoked Tornillo explicitly. And this Court had none of it. So the Court does need to draw a line, I think, between a selective speech host that is exercising editorial control and a speech host like a common carrier or like the mall in Pruneyard that can indeed be regulated in prevent -- in being prevented from silencing its customers.
Justice Kavanaugh: On the selective speech host point, I think you've made the point to Justice Kagan that they don't eliminate much speech. But didn't we deal with that in Hurley as well and say that the mere fact that the parade organizer usually took almost all comers was irrelevant to the First Amendment interests Official 1 in essentially editorial control over who participated in the parade?
Henry C. Whitaker: Yeah, and I -- and I -- and I guess I think Hurley, Your Honor, really turned more on the fact that what was the activity there was a St. Patrick's Day parade with a particular expressive purpose, and so perhaps the -- the -- the -- it -- it could still be expressive and be a little bit more lenient. But I would note that this Court in Hurley did -- in rejecting the conduit argument, relied on the fact that there was front-end selection of -- of the members of the parade, that the -- the parade committee -- the committee that was responsible for it was doing front-end selection. So I do think Hurley fits our theory. But I also think that selectivity is totally relevant to who is the speaker. And I -- and we -- we analogize in our brief to the government speech cases where this Court has made that exact point in a variety of cases, such as Matal versus Tam and Shurtleff. And what you have said is that if the government is Official 1 not exercising a ton of control over the speech that comes into a forum, it is not speaking and it can't censor. That's what this Court held in Shurtleff the --
Justice Kavanaugh: Thank -- thank you.
Chief Justice Roberts: Justice Barrett?
Justice Barrett: Mr. Whitaker, I have a question about this editorial control because, really, when it comes to platforms that are the traditional social media platforms like YouTube, Instagram, you know, TikTok, Twitter/X, it all rides -- it all turns on editorial control. It seems to me that one distinction between this and FAIR is that, here, these companies are speech hosts, right? I mean, the law schools in FAIR were hosting job fairs for this purpose, like online recruiting. They weren't gathering together a whole bunch of people and saying, here, present your ideas, present your posts. I mean, these social media companies are hosting speech. So why isn't that more like a newspaper in Tornillo? Official
Henry C. Whitaker: It -- it is -- it is different, Your Honor, but -- but I think that that's why we've -- we've leaned on -- also on the common carrier analogy, I -- which I think reflects that a -- a speech -- you can't just say it's a speech host and go home because, if that were true, Verizon could censor. Excuse me.
Justice Barrett: Well -- well, put aside common carrier for one second and just pretend -- just put common carrier to the side. Just tell me why this doesn't look like the same kind of editorial control we see newspapers exercise.
Henry C. Whitaker: Because the platforms do not review -- it -- it is a strange kind of editor, Your Honor, that does not actually look at the material that is going on its compilation. I mean, in Twitter versus Taamneh, the platforms told you that they didn't even know that ISIS was on their platform and doing things. And it is a strange kind of editor that does not even know that -- the material that it is editing.
Justice Barrett: Is it because it's Official 1 not humanized? I mean would -- "humanized," not human eyes. Is it because it could be an algorithm that says, you know, we want to have, as Justice Kagan was pointing out, terms of service, we want to have this kind of site. You know, or -- or -- or some say that, for example, TikTok might have boosted pro-Palestinian speech and reduced -- reduced pro-Israel speech. That's a viewpoint, right? And if you have an algorithm do it, is that not speech?
Henry C. Whitaker: Well, it -- it -- it might be, Your Honor, but -- but, again, in -- in -- in Twitter and Gonzalez, the -- the -- the platforms told you that the algorithms were methods of organizing -- neutral methods of organizing the speech, much like the Dewey decimal system.
Justice Barrett: Well, that's not what they're saying here. So let's -- let's assume that what they're saying here, that they're organizing it, you know, in ways that reflect preferences, that are expressive of their terms and conditions. In that event, do you think it would be editorial control in a First Amendment sense? Official
Henry C. Whitaker: No. And -- and I think it's important to separate the organize -- and I agree with Justice Jackson that it's important to separate the various functions -- the organizing function from the hosting function. And this is a point that Professor Volokh has made in his -- in -- in his article that we cite. I mean, the -- if it -- simply because they -- they are required to host certain speech, it -- that does not actually meaningfully prevent -- prevent them from organizing that speech. So I think the Court has to separate out regulation of the organization from simply preventing them from censoring. And the reason, Your Honor, it is different from a newspaper, I think, is two principal points. First, we've been talking a lot about selection, but, second, space constraints. Space constraints are something that this Court in FAIR and in Tornillo relied on as one factor that is relevant. And the social media companies have -- don't have any space constraints, which means that a Official 1 requirement to host an additional piece of -- of content is a -- a relatively less restriction over --
Justice Barrett: Well, let me just interrupt you there. I mean, Justice Sotomayor pointed out that even though there may not be physical space constraints, there are the -- the -- the constraints of attention, right? They have to present information to a consumer in some sort of organized way and that there's a limited enough amount of information that the -- the consumer can absorb it. And don't all methods of organization reflect some kind of judgment? I mean, could you tell -- could Florida enact a law telling bookstores that they have to put everything out by alphabetical order and that they can't organize or put some things closer to the front of the store that they think, you know, their customers will want to buy?
Henry C. Whitaker: I think, first -- first, let me just take a step back because one of the problems here is we don't have any information in this record on their algorithms. It's very difficult for us to piece -- pick Official 1 apart what exactly the algorithms are doing. You certainly could imagine, I think, to be -- you know, to be candid, an algorithm that could be expressive. As far as we can tell, if the algorithms work, though, in the manner that this Court described them in Twitter versus Taamneh, they look more like neutral ways to reflect user choice, and I don't think there's expression in that. Now you can imagine a different kind of algorithm. If an algorithm -- if it were possible to have an algorithm that made a website look like a newspaper, that would be different. But, again, I think the Court -- the -- the question of organization is analytically too distinct from -- from the separate question of whether they can be regulated in their hosting and censorship.
Justice Barrett: Okay. So your argument that it's not expressive entirely depends on the hypothesis that the sorting and feed functions are solely some sort of neutral algorithm that's designed to user preference and that they reflect no kind of policy judgment Official 1 based on the platform itself?
Henry C. Whitaker: No. No, not at all, actually, Your Honor, because I think that preventing them from censoring does not meaningfully pre -- pre -- preclude them from organizing. If they're required to carry a piece of content, they can organize it however they want generally. I mean, there are prohibitions on shadow banning and the like, but they can generally organize it however they want. So a prohibition on censorship and deplatforming is not, I think, a meaningful interference with organizing. But -- but, again, on -- on algorithms, I would just stress that this is a -- a facial challenge. We don't have any particular information on what exactly their -- the content of their algorithms are. And so I think the only question there is whether there's a possible state of the world under which the algorithms are non-expressive.
Justice Barrett: Okay. Let me just ask you one last question. It's about the facial challenge aspect of this. Official 1 So Florida's law so far as I can understand it is very broad, and we're talking about the classic social media platforms, but it looks to me like it could cover Uber, it looks to me like it could cover just Google search engines, Amazon Web Service, and all of those things would look very different. And, you know, Justice Sotomayor brought up Etsy. It seems to me that they're arguing -- now Etsy has a feed recommended for you, right, but it also just has shops for handmade goods that you can get. It looks a lot more like a brick-and-mortar marketplace or flea market, you know, than, you know, a place for hosting speech. Okay? So, if this is a facial challenge and Florida's law indeed is broad enough to cover a lot of this conduct which is farther away from expression than these standard social media platforms, why didn't you then in your brief kind of defend it by pointing out, look, there's all this other stuff that's perfectly fine that Florida covers. We don't want, you know, some person who wants to sell their goods on Etsy to be suppressed because it's, you know, stuff -- Official 1 handmarked -- handmade goods that express a political view, for example.
Henry C. Whitaker: I think we did defend the application of our law to Etsy, and I think I've -- I've defended that from -- from the lectern, but -- but -- but I don't think you need to be with me on --
Justice Barrett: But, I mean, pointing out, I mean, I can -- I can sit here and think of all kinds of applications of this law that really wouldn't hit expression, but -- but I -- I just don't understand you to have been defending the law in that way --
Henry C. Whitaker: Well --
Justice Barrett: -- as opposed to countering the argument that the -- the platforms are not engaged in expression.
Henry C. Whitaker: We're -- we're -- we're -- we're making both arguments, Your Honor, to be clear. As I was -- as I was discussing with Justice Sotomayor, we view Etsy as not having a significant expressive interest in applying its policy -- its content moderation policies.
Justice Barrett: So is that enough to Official 1 just make this whole thing fail, I guess, is my question. If -- if --
Henry C. Whitaker: Yes, I think it is.
Justice Barrett: -- if we agree with you that Etsy, it's fine for it to apply to, or Uber, it's fine, you know, Amazon Web Services, if we agreed with you with all that, is that enough to just say, well, then this facial challenge can't succeed?
Henry C. Whitaker: Yes, because that would give the law a plainly legitimate sweep, and that's all the Court needs to -- to address here to reject the facial challenge.
Justice Barrett: Thank you.
Chief Justice Roberts: Justice Jackson?
Justice Jackson: So I feel like there's a lot of indeterminacy in this set of facts and in this circumstance, as Justice Alito tried to, I think, illuminate with his questions. We're not quite sure who it covers. We're not clear exactly how these -- these platforms work. One of the things I wanted to give you the chance to address is the lack of clarity Official 1 about what the statute necessarily means. You've given a couple of -- you -- you've talked about the consistency provision, for example, and you've represented what you think it means, but we don't have a state court determination interpreting that provision, do we?
Henry C. Whitaker: You do not, Your Honor. In fact, the -- the -- the law was not allowed to go into effect, so the Florida courts have not had an opportunity to construe this statute at all. And I think that counsels strongly in favor of rejecting the facial challenge because this Court has considered in Washington State Grange case the -- the fact that the state courts have not had an opportunity to construe a state law that's being attacked on its face as -- as a reason to reject a facial challenge.
Justice Jackson: Can I ask you, do you think this statute could be susceptible to multiple interpretations? I mean, I can imagine even the consistency provision, you know, well, what does it mean that they have to do this consistently? They have to apply the same standards, or it has to substantively result in Official 1 the same level of preference? I could imagine there you -- you could interpret that both more narrowly or broadly.
Henry C. Whitaker: There -- there certainly may be some interpretive questions, Your Honor. On that point, I don't think there is any -- any ambiguity. And let me just read to you what the consistency provision says. It says, "a social media platform must apply censorship, deplatforming, and shadow banning standards in a consistent manner among its users on the platform." And the censorship, deplatforming, and shadow banning standards are the things that the social media company must under a separate provision of the law publicly disclose, which was a disclosure requirement that the Eleventh Circuit upheld.
Justice Jackson: Yes, I understand.
Henry C. Whitaker: But --
Justice Jackson: I mean, I -- I appreciate that Florida's position is that our law is perfectly clear, but I -- I --
Henry C. Whitaker: Well -- well -- well, but I think that that -- that that language I Official 1 just read to you I think makes clear that the baseline for comparison is not some abstract notion of fairness.
Justice Jackson: All right. Well, let me ask you this about that, all right? So let's assume we get to the point we disagree with you about whether or not expressive activity is covered and we're actually applying or trying to determine which standard applies, that is, you know, level of scrutiny. What I'm a little confused about is how we evaluate, for example, the 30-day restriction with respect to determining whether it's content-based or content-neutral. I appreciate that on its face it doesn't particularly -- you know, it doesn't point to a particular type of content -- content, but I suppose it's applied in reference to content, right?
Henry C. Whitaker: Well, the --
Justice Jackson: I mean, that -- that restriction is a regulated entity can only change its rules, terms, and engagements once every 30 days. But we would have to look at what it was before and what it is now to Official 1 determine if there's a change. So is that a content-based restriction or not?
Henry C. Whitaker: Certainly not. I mean, the -- you know, this Court held a couple terms ago in the City of Austin case just that simply because a regulation requires consideration of content doesn't -- doesn't make it content-based. And there's nothing on the face of that provision that targets any particular message of the platforms. And -- and -- and I think just to -- just to zoom out a little bit on the 30-day provision, I mean, that provision is really an adjunct to the -- the consistency provision as I understand it, and -- and the point of it is that it wouldn't do much good to require the platforms to apply their policies consistently if they could just sort of constantly change them. And -- and that, I think, is the point --
Justice Jackson: I understand. But, in the application of even the consistency provisions, to determine whether they're not doing it consistently, aren't we also looking at content to some extent? I mean, I'm just --
Henry C. Whitaker: Well -- Official
Justice Jackson: -- it's -- I -- I think it's not necessarily as easy as it might seem to determine whether or not these provisions are actually content-based or content-neutral.
Henry C. Whitaker: Well, again, I -- I -- I don't think the fact that it requires consideration of -- of content makes it content-based. I think you would look at whether that -- it's targeting some kind of a message of the platform, and there's nothing on the face of the 30-day provision that does that, Your Honor.
Justice Jackson: Thank you.
Chief Justice Roberts: Thank you, counsel. Mr. Clement. ORAL ARGUMENT OF PAUL D. CLEMENT ON BEHALF OF THE RESPONDENTS
Paul D. Clement: Mr. Chief Justice, and may it please the Court: Florida's effort to level the playing field and to fight the perceived bias of big tech violates the First Amendment several times over. It interferes with editorial discretion. Official 1 It compels speech. It discriminates on the basis of content, speaker, and view -- and viewpoint. And it does all this in the name of promoting free speech but loses sight of the first principle of the First Amendment, which is it only applies to state action. Florida defends its law, as you've heard this morning, principally by insisting that there's no expressive activity being regulated. That blinks reality. This statute defines the targeted websites in part by how big their audience is. It regulates the content and display of particular websites, and it tries to prevent my clients from censoring speakers and content. If you are telling the websites that you are -- that they can't censor speakers, you can't turn around and say you're not regulating expressive activity. It's all over this law. And that brings it squarely within the teaching of Tornillo, PG&E, and Hurley. All three of those cases teach that you cannot have the forced dissemination of third-party speech and they reject considerations of market power, misattribution, Official 1 or space constraints. And Reno and 303 Creative make clear those principles are fully applicable on the Internet. Indeed, given the vast amount of material on the Internet in general and on these websites in particular, exercising editorial discretion is absolutely necessary to make the websites useful for users and advertisers. And the closer you look at Florida's law, the more problematic the First Amendment problems become. It singles out particular websites, in plain violation of Minneapolis Star. Its provisions that give preferences to political candidates and to edit -- and -- and to journalistic enterprises are content-based in the extreme. I welcome the Court's questions.
Justice Thomas: Mr. Clement, if the government did what your clients are doing, or -- would that be government speech?
Paul D. Clement: So it might be government speech, but I think it would be unconstitutional government speech, which is to say, when the government -- I mean, you know, obviously, you have government speech cases, but Official 1 when what the government's doing is exercising editorial discretion to censor some viewers or some speakers and not others, I think that plainly violates the First Amendment. And I think that's essentially the thrust of this Court's decision in the Manhattan Community Cable case against Halleck, which is that in this area, looking for state action is absolutely critical. There are things that the -- if the government does, is a First Amendment problem and if a private speaker does, we recognize that as protected activity.
Justice Thomas: So --
Justice Jackson: Mr. Clement, you -- oh, sorry.
Justice Thomas: -- can you give me one example of a case in which we have said the First Amendment protects the right to censor?
Paul D. Clement: So I don't know that the Court used that particular locution, Justice Thomas, but I think that is the thrust of Hurley, that is the thrust of PG&E, that is the thrust of Tornillo. In all of those cases, a private party did not want to convey and disseminate the speech of a third party. And in Official 1 every case, the government said, no, we have some really good reason here why this private party has to disseminate the message of a third party. And --
Justice Thomas: I've been fortunate or unfortunate to have been here for most of the development of the Internet. (Laughter.)
Justice Thomas: And on the argument under Section 230 has been that you're merely a conduit, which it -- exact -- that was the case back in the '90s and perhaps the early 2000s. Now you're saying that you are engaged in editorial discretion and expressive conduct. Doesn't that seem to undermine your Section 230 arguments?
Paul D. Clement: With respect, Justice Thomas, I mean, obviously, you were here for all of it. I wasn't here for all of it. But my understanding is that my clients have consistently taken the position that they are not mere conduits. And Congress, in passing Section 230, looked at some common law cases that basically said, well, if you're just a pure conduit, that means that you're free from Official 1 liability. But, if you start becoming a publisher, by keeping some bad conduct out -- content out, then you no longer have that common law liability protection. And as I understand 230, the whole point of it was to encourage websites and other regulated parties to essentially exercise editorial discretion to keep some of that bad stuff out of there, and as a result, what Congress said is -- they didn't say: And you're still a conduit if you do that. No, it said: You shouldn't be treated as a publisher, because Congress recognized that what my clients were doing would, in another context, look like publishing, which would come with the kind of traditional defamation liability, and they wanted to protect them against that precisely to encourage them to take down some of the bad material that, if these laws go into effect, we'd be forced to convey on our websites.
Justice Jackson: Mr. Clement, can I ask you about the facial nature of this? Because my understanding is that, to strike down this statute as facially unconstitutional, we would have to conclude that there's no possible Official 1 way for this law to govern these entities and their conduct. So, first, do I have the standard right?
Paul D. Clement: With all due respect, I don't think so.
Justice Jackson: Okay.
Paul D. Clement: In the First Amendment context, as my friend was indicating, the question is whether or not the statute has a plainly legitimate sweep. So it's not the Salerno, if there's one little application somewhere, that's enough to save the statute.
Justice Jackson: But, I mean, whose burden is that? I thought it was your burden to say that this statute, in almost all of its applications or in most or a substantial number or something, would be unconstitutional in order to get it facially stricken.
Paul D. Clement: So two things, Your Honor. I think our burden would be -- it would be our burden to say that this statute doesn't have a plainly legitimate sweep. In fact, it is our position, and we did make this argument below and succeeded, that this statute actually Official 1 has no constitutional application, and part of that is because none of this statute, at least none of the part that's in front of you today, applies unless you are a covered website.
Justice Alito: Does the --
Paul D. Clement: And the website --
Justice Jackson: But -- but wait. I -- can I just -- I don't understand. I'm sorry. You -- so no application, but we have so many different applications of the law in this situation precisely because it is so broad. So how -- how can you say that?
Paul D. Clement: Because the statute only applies to websites that are a handful of websites that meet the viewership threshold or the total sales threshold. And it's -- you know, it's not our only argument, obviously, but one of our arguments is you can't regulate expressive activity in that kind of targeted way.
Justice Alito: Mr. Clement, does the --
Justice Jackson: And those websites only --
Justice Alito: -- does the Florida Official 1 law cover Gmail?
Paul D. Clement: The -- the Florida law I -- I -- I think by its terms could cover Gmail.
Justice Alito: All right. So does Gmail have a First Amendment right to delete, let's say, Tucker Carlson's or Rachel Maddow's Gmail accounts if they don't agree with her -- his or her viewpoints?
Paul D. Clement: They -- they might be able to do that, Your Honor. I mean, that's obviously not something that has been the square focus of this litigation, but lower courts have looked --
Justice Alito: Well, if they don't, then how are we going to judge whether this law satisfies the -- the requirements of either Salerno or overbreadth?
Paul D. Clement: So it's -- you know, again, I think it's the plainly legitimate sweep test, which is not synonymous with overbreadth, but in all events, since this statute applies to Gmail, if it applies at all, because it's part of Google, which qualifies over the threshold, and it doesn't apply to competing email services that provide identical services, that alone is Official 1 enough to make every application of this statute unconstitutional.
Justice Kagan: I mean, how could that be?
Justice Alito: Does it apply to -- go ahead.
Justice Kagan: How could -- how could that be, Mr. Clement? It's not unconstitutional to distinguish on the basis of bigness, right?
Paul D. Clement: It -- it is when you're regulating expressive activity. That's what this Court said in Minneapolis Star. So the statute in Minneapolis Star was unconstitutional in all its applications. The statute --
Justice Kagan: If -- if you -- you're saying, if -- if -- if there were no issue here of -- that this is really a subterfuge, they were trying to get at a certain kind of media company that -- because of their views, and the only issue was it's not worth it to regulate a lot of small sites, you know, we -- we only want to go after the big sites that actually have many millions of users, you think that's a First Amendment violation?
Paul D. Clement: I do. The way you're Official 1 asking the question suggests you think that's a harder case than the one I actually have before you.
Justice Kagan: I -- I think it's a little bit of an impossible case to say you can't go after big companies under the First Amendment.
Paul D. Clement: All you have to do is go after all the social website -- media websites or all of the websites. You don't have to draw these artificial distinctions that just so, you know, coincidentally happen to coincide with the websites that you think have a bias that you're trying to correct. And just to remind you of how the statute --
Justice Kagan: Right, but I took that out of the -- the -- the -- the question. Let's say that they weren't going after these companies because of bias or because they thought they had a slant. It was just, you know, we're going after the biggest companies because those are the companies with the biggest impact and the most number of users. How -- how -- how could that be a First Amendment violation? Official
Paul D. Clement: Because Minneapolis Star says it is, because Arkansas Writers' Project says it is, and because, if you actually got to analyzing their so-called consumer protection interest, the consumer protection interest would be exactly the same for a website with 99 million global users as it would be with a website with a hundred million global users. And so I think there are red flags over all of the distinctions drawn in the statute. And then, if you look at the statute more closely, I mean, my goodness, the political candidates provision says that you can't have posts about a political candidate. I can't imagine anything more obviously content-based than that. That's --
Chief Justice Roberts: Counsel, is there --
Paul D. Clement: -- unconstitutional in every one of its applications.
Chief Justice Roberts: -- is there any aspect of the service that -- provided on the social platforms that is not protected under the First Amendment or that is plainly valid under the First Amendment? Official
Paul D. Clement: I -- I think it's all protected by the First Amendment. I mean, obviously --
Chief Justice Roberts: Direct mess -- direct messages?
Paul D. Clement: I -- I -- I think direct messages are protected under the First Amendment. I think that the courts that have looked at things like whether Gmail is a common carrier have actually held that -- and there's a case involving the RNC that has a specific holding that Gmail is not a common carrier. I think much of the logic of that would apply to direct messaging. Obviously, if this were a statute that tried to address my clients only to the extent that they operated a job board, this would be a lot closer to FAIR and I might have a harder case.
Justice Gorsuch: So, Mr. Clement, the government says your brief sometimes errs in suggesting that conduit-type activity is always expressive. And direct messages, Gmail, I -- I take it your view then is that providers can discriminate on the basis -- political views, Official 1 religious beliefs, maybe even race?
Paul D. Clement: So, Justice Gorsuch, I think you have to distinguish between two things. One is sort of a status-based discrimination, and the other is status as speaker. And so I don't think that our clients could discriminate and say you can't be on our service, you can't even get access to our service on the basis of race.
Justice Gorsuch: No, there's -- but -- but in how they use it and -- and their speech.
Paul D. Clement: So --
Justice Gorsuch: I'm talking about the content of their speech.
Paul D. Clement: Yeah. I think, when it comes --
Justice Gorsuch: That it has something to do with religion or politics or race, you can editorialize and use that editorial power to suppress that speech, right?
Paul D. Clement: So I think that gets to a very hard question. I think it would be speech, but like I think it's the --
Justice Gorsuch: So the answer is Official 1 yes, we can -- we can delete emails, we can delete direct messages that we don't agree with based on politics, religion, or race?
Paul D. Clement: Probably not in application, but I do think, look, a bookstore, if it wants to have a display this month to celebrate black history, can they limit that display just to African American authors? I think the answer is probably yes.
Justice Gorsuch: And so it is here too, right?
Paul D. Clement: I -- I think the answer is that there's at least First Amendment activity going on there, and that -- and then you would apply the equal protection clause to it, and then you would decide whether or not that's permissible or not. But, obviously, I think this case involves editorial decisions at its heart. And one thing I just want to make clear on the facial challenge point just so you understand how this case came to be, as you heard today, my friend's principal argument is this doesn't cover expressive activity at all. And in the lower court, when we sought Official 1 a preliminary injunction, they put all their eggs in that basket and they specifically said, look, we don't want to do intermediate scrutiny at the preliminary injunction stage, so we really only have an argument to resist this preliminary injunction if you hold that this is not expressive activity. And they did the same thing in the Eleventh Circuit. There's a -- we -- we have a footnote in our brief making it clear on the pages exactly where they did this. So they basically said: We either want to win this on the threshold question that this is not expressive activity, or we don't want to get into the rest of it at this point. We'll have some discovery and we'll have the preliminary injunction and delay it.
Justice Alito: Mr. Clement --
Justice Barrett: Mr. Clement --
Justice Alito: -- does the -- does the Florida law apply to Uber?
Paul D. Clement: Its definition would seem to apply to Uber, yes.
Justice Alito: So you've told us that it's okay for your clients to discriminate on the basis of viewpoint in the provision of email Official 1 services or in allowing direct messages, messages from one Facebook user to another on -- on a private facility. How about Uber discriminating on the basis of viewpoint with respect to people that its drivers will pick up?
Paul D. Clement: So I -- I think the way that --
Justice Alito: Is that okay?
Paul D. Clement: I don't think that's okay. I don't think Uber is interested in doing that. I think the way the statute would apply to Uber, just to make clear, is it really would apply, like, on comments on the drivers or comments section on something like that if Uber wants to just sort of -- and -- and -- and Etsy, I think it's the same way. You know, Etsy has an ability for you to put comments on the seller and whether they did a nice job or a bad job. And Etsy doesn't want certain comments on that, and they want to clean that up to keep it to be a better place for people to come and look at materials. So, when you think about the applications of this statute to some of the Official 1 things that seem less obvious, it's really focused on that expressive aspect of it. But, obviously, the core of the statute and the motivation for the legislation and the examples that my friends from Florida include in their own petition appendix are about much more expressive activity by the YouTubes and the Facebooks of the world, excluding certain speakers, and they want to override that classic editorial decision.
Justice Barrett: But, Mr. Clement, that's cut -- one of the things that's hard for me about this case is let's posit that I agree with you about Facebook and YouTube and those -- those core social media platforms. Don't we have to consider these questions Justice Alito is raising about DMs and Uber and Etsy because we have to look at the statute as a whole? And, I mean, we don't have a lot of briefing on this, and this is a sprawling statute and it makes me a little bit nervous. I'm not sure I agree with you about DMs and -- and Gmail, just it -- it's not obvious to me anyway that that -- that they Official 1 would -- that they can't qualify as common carriers.
Paul D. Clement: Look, I agree, you don't want to decide all of that today.
Justice Barrett: Yeah.
Paul D. Clement: But this is not here on sort of final judgment. It's here on a preliminary injunction. And the question is, you know, do you want this law with all of these unconstitutional applications enforced by every Floridian, so every -- these provisions are enforced by an -- every Floridian being able to go into court and get $100,000 in civil penalties. Now do you want that completely antithetical law to the First Amendment to go into effect while we sort out all these anterior questions, or do you want it to be put on hold while we can litigate all of this stuff, and if it turns out there's a couple of applications that are okay or somebody wants, you know, briefing just on the question of whether direct mail is -- is a common carrier, all that --
Justice Kavanaugh: And --
Justice Barrett: But can we escape Official 1 that in this posture?
Paul D. Clement: Absolutely you can escape that in this posture. You affirm this preliminary injunction which is in place. If you want to, you can point to the clear litigation judgment that Florida expressly made below, which is we're not going to get into all of that intermediate scrutiny stuff. We don't want a record on that. We're going to put all our eggs in the expressive activity basket, and they could not have been more clear about that below and in the Eleventh Circuit, and then you say this law which has all of these First Amendment problems, this wolf comes as a wolf, we are going to put that on hold and then we can sort out some of these tertiary questions.
Justice Alito: Well, if that's the case, Mr. Clement, to what extent is it the -- is it the result of your own litigation decisions? You could have brought an as-applied challenge limited to the two platforms that you want to talk about, Facebook and YouTube. But, instead, you brought a facial challenge, and you claim that it's also susceptible to analysis under overbreadth. So Official 1 you had to -- to get a preliminary injunction, you had to show you had a probability of success on your facial or overbreadth challenge.
Paul D. Clement: And we did in --
Justice Alito: You can't now shift and say let's -- you know, it was a good preliminary injunction because it's fine as applied to the platforms I want to talk about, and let's forget about all the other platforms that might be covered.
Paul D. Clement: Well, Justice Alito, first of all, we -- we did all that and we won. Second of all --
Justice Alito: Did you bring an as-applied challenge? MR. CLEMENT. No, we didn't bring an as-applied challenge because we think this --
Justice Gorsuch: So --
Paul D. Clement: -- we think this --
Justice Gorsuch: So --
Paul D. Clement: -- statute is unconstitutional in all its applications.
Justice Gorsuch: Exactly. And so you -- you -- you suggested it could be sorted out on remand, but, on remand, it's still a Official 1 facial challenge, and -- and there is no --
Paul D. Clement: It is still a facial challenge, you're right.
Justice Gorsuch: And so, again, you think all of the applications are unconstitutional, right?
Paul D. Clement: I -- I do because the definitions are problematic, the terms --
Justice Gorsuch: So there's nothing to sort out on remand. It's done. If -- if you should prevail in this -- on a -- on a preliminary injunction here, I mean, for practical purposes, it's finished, and so there is no opportunity to sort out anything on remand.
Paul D. Clement: There's the whole merits. What we've shown is a likelihood of success on the merits. We haven't won on the merits yet.
Justice Gorsuch: All or nothing.
Justice Jackson: Can -- can I try it another way? I mean, I -- I asked you before what was the standard, and now you're saying that you think that all applications are unconstitutional, which I think is your burden Official 1 to establish. So, if we come up with some scenarios in this context in which we can envision it not being unconstitutional, why don't you lose?
Paul D. Clement: First of all, that's not the standard with all due respect. I mean, this Court has never applied the Salerno standard in a First Amendment case. And this would be the worst First Amendment case in this Court's history if you started down that road because you can always put in some provision into a statute that's innocuous and then you say, well, there's a couple of fine things in there. You look at it section by section and these sections are pernicious from a First Amendment standard, can't have content about a political candidate. There's no constitutional application to that.
Chief Justice Roberts: Thank you, counsel. Just so I understand precisely, your position is that the only issue before us is whether or not the speech that is regulated qualifies as -- not to beg the question -- the Official 1 expression that's before us is not speech?
Paul D. Clement: I -- I think that's one way to put it. Obviously, you have two questions presented. You're going to be able to decide whatever you think is fairly included in those questions presented. I'm just pointing out that as an artifact of the way my friend's litigated this case, you do not have a record on everything that might be interesting for intermediate scrutiny, and it's not my fault. It is based precisely on their representations to the courts below that they did not want to get into the intermediate scrutiny thing, they wanted to tee up the expressive activity issue.
Chief Justice Roberts: If -- if the appropriate standard is not Salerno, could you articulate what you think is the appropriate standard?
Paul D. Clement: I think the -- the appropriate standard is whether the First Amendment -- the statute that implicates the First Amendment has a plainly legitimate sweep.
Chief Justice Roberts: Thank you. Justice Thomas? Official
Justice Thomas: Could you again explain to me why, if you win here, it does not present a Section 230 problem for you?
Paul D. Clement: If we win here, we avoid Section 230 problems, I think, Your Honor, and the reason is that 230 is a protection against liability. It's a protection against liability because Congress wanted us to operate as publishers, and so it -- it -- it wanted us to exercise editorial discretion, and so it gave us liability protection. But liability protection and First Amendment status don't go hand in hand. I don't think the parade organizer in Hurley was responsible for the parade floats that go -- went into its parade. Historically, newsstands and others aren't responsible for the materials. So -- so I don't think you have to sort of say it's one or the other. I mean, I think the 230 protection stands alone.
Justice Thomas: So what is it that you are editing out that fits under Section 230?
Paul D. Clement: So, in some of these -- I mean, it depends on -- you know, in -- in some cases, it is terrorist material. In other Official 1 cases, it's kids that are telling other kids, hey, you should do this Tide POD challenge. In some cases, it's kids that are encouraging other kids to commit suicide. There's a whole bunch of stuff that we think is, you know, offensive within the terms of 230 that we're exercising our editorial discretion to take out.
Justice Thomas: Well, but 230 does not necessarily touch on offensive material. It -- it touches on obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable. Do you think --
Paul D. Clement: It's that last one. (Laughter.)
Justice Thomas: Well --
Paul D. Clement: I mean, we could have a fine debate about, you know, the -- you know, the last, you know, sort of -- you know, how much of that --
Justice Thomas: Right.
Paul D. Clement: -- you -- you sort of -- you know, what -- what -- what's the Latin for that, or the company you keep and all of that. I mean, we could have that fine debate in some Official 1 other case, but we would certainly take the position that we're protected in those judgments under 230.
Justice Thomas: Well, I think you'd make that, the ejusdem doctrine, do a lot of work. But let's put that aside. Tell me again exactly what the expressive conduct is that, for example, YouTube engages in when it -- it -- it -- or, I'm sorry, Twitter deplatforms someone. What is the expressive conduct and to whom is it being communicated?
Paul D. Clement: So, when they, you know, let's say deplatform somebody for violating their terms of use or for continuing to post material that violates the terms of use, then they are sending a message to that person and to their broader audience that that material --
Justice Thomas: How would you know someone's been deplatformed? Is there a notice?
Paul D. Clement: Typically, you do get a notice of that, and there's a provision --
Justice Thomas: No, I mean the audience, the other people.
Paul D. Clement: Well, they're going to Official 1 see that they're not there anymore. They're no longer in their feed --
Justice Thomas: Well, but the --
Paul D. Clement: -- and, presumably --
Justice Thomas: -- the message could be they didn't want to be there anymore. They're tired of it. They're exhausted.
Paul D. Clement: Well, and -- and -- and here's the thing. I mean, you know, that -- that -- that message is then going to be carried over in -- you know, this isn't just about who gets excised from the platform. It's all about what material people see on their individualized sort of -- you know, when they tap into Facebook or Twitter or -- or -- or YouTube. And what they're not going to see is they're not going to see material that violates the terms of use. They're not going to see a bunch of material of -- that -- that glorifies terrorism. They're not going to see a bunch of material that glorifies suicide.
Justice Thomas: Is there any distinction between action or editing that takes place as a result of an algorithm as opposed to an individual? Official
Paul D. Clement: I -- I don't think so, Your Honor. These algorithms don't spring from the ether. They are essentially computer programs designed by humans to try to do some of this editorial function and is --
Justice Thomas: Well, but what do you do with a deep-learning algorithm which teaches itself and -- and has very little human intervention?
Paul D. Clement: You -- you still had to have somebody who kind of created the universe that that algorithm is going to look at.
Justice Thomas: So who's speaking then, the algorithm or the person?
Paul D. Clement: I -- I -- I think, the, you know, the question in these cases would be that Facebook is speaking, that YouTube is speaking, because they're the ones that are using these devices to run their editorial discretion across these massive volumes. And the reason they're doing this, and, of course, they're supplementing it with lots and lots of humans as well, but the reason they have to use the algorithms, of course, is the volume of material on these sites, which Official 1 just shows you the volume of --
Justice Thomas: Okay.
Paul D. Clement: -- editorial discretion.
Justice Thomas: Yeah, and, finally -- I'm sorry to keep going, Mr. Clement -- exactly what are they saying?
Paul D. Clement: So --
Justice Thomas: What is the algorithm saying? I don't know. I'm not on any, you know. But what is it saying?
Paul D. Clement: It's saying --
Justice Thomas: Is it a consistent message? What -- I mean, usually -- when we had Hurley, the -- it was their parade and they didn't want certain people in their parade. You understood that. What are they saying here?
Paul D. Clement: They are saying things like Facebook doesn't want pro-terrorist stuff on our site.
Justice Thomas: I didn't -- I -- we're not talking about terrorists here.
Paul D. Clement: Well --
Justice Thomas: Those aren't -- terrorists aren't complaining about it. Official
Paul D. Clement: Well, I -- I -- I think, actually, we are talking about terrorism here because I think, if these laws go into effect --
Justice Thomas: But I thought that was a crime. I mean, under -- they -- the -- as I understood Florida, they said that they -- they -- one provision in the Act says they -- nothing that's inconsistent with Section 230. It seems to me that it is consistent with Section 230.
Paul D. Clement: So, Your -- Your Honor, it is -- you know, there are things like, if -- if you have a video on how to build a bomb to blow up, you know, a church or something, maybe that's prohibited by sort of, you know, the -- that -- that kind of illegality provision. But, if there's something glorifying the attacks of October 7, and one of these companies wants to keep that off of the sites, or is there something on there that they want to -- that sort of glorifies sort of, you know -- sort of incredibly thin teenage bulimia and they want to keep that off their site, they -- they have the right to do that. And that's an important message. Official 1 And just like in Hurley, the message that they are sending is a message about what they exclude from their -- their forum.
Chief Justice Roberts: Justice Alito?
Justice Alito: There's a lot of new terminology bouncing around in these cases, and just out of curiosity, one of them is "content moderation." Could you define that for me?
Paul D. Clement: So, you know, look, content moderation to me is just editorial discretion. It's a way to take the -- the -- the -- all of the content that is potentially posted on the site, exercise editorial discretion in order to make it less offensive to users and advertisers.
Justice Alito: Is it -- is it anything more than a euphemism for censorship? Let me just ask you this. If somebody in 1917 was prosecuted and thrown in jail for opposing U.S. participation in World War I, was that content moderation?
Paul D. Clement: So, if the government's doing it, then content moderation might be a euphemism for censorship. If a private party is doing it, content moderation is a euphemism for Official 1 editorial discretion. And there's a fundamental difference between the two.
Justice Alito: For editorial discretion, are you affirmatively saying -- never mind. No -- no further questions.
Chief Justice Roberts: Justice Sotomayor?
Justice Sotomayor: Mr. Clement, I'm -- I'm now sort of trying to take all of this in, and I think that I came into this very differently than you have. I came into this thinking there are different functionalities by websites. So some host news, like the news feed in Facebook. Some host -- like Justice Barrett was talking about and others, Gmail or -- where they're just letting people contact each other, direct messaging. And I was thinking that since I think rightly this law seems to cover all of that, that it's so broad, how -- but that it might have some plainly legitimate sweep, it might be okay to require direct messaging to give you notice, to be consistent, to pay attention to -- to 30-day registration. Some of these provisions might be okay for those functions. Official 1 But you're saying to me that's not true. Can you articulate very succinctly why you think, at this stage on a facial challenge, that we can say there is no plainly legitimate sweep, that this particular law, after we sort it all out below, will still survive? Now I think the court below said -- and you try to take that out from Justice Kagan's answer -- maybe I don't want to, okay, is it because this law was passed with viewpoint discrimination in mind? That's what the court below said.
Paul D. Clement: The -- the -- the court below said that. And that would be a sufficient basis to take out the whole law. The law is also shot through with content-based provisions. I think that's enough to take out the whole law. It also -- the entire law, every provision we challenge is speaker-based in its limited reach. And what this Court's cases clearly say, including NIFLA, which my recollection is was a facial challenge, says that when you look at speaker-based distinctions, you can then open the lens a little bit and see if those Official 1 speaker-based provisions are infused with viewpoint discrimination or other discriminatory influences. And if you do that here -- I mean, you don't have to get past the governor's official signing statement to say -- to understand that -- the restrictions on this statute. I mean, you know, it -- it's one thing to say, well, they're only getting the big companies. But, when the governor is telling you we're going after the viewpoints of the -- of the Silicon Valley oligarchs, then all of the sudden, limiting it to the biggest companies starts to tell you that this is targeted like a laser beam at the companies that they don't like the editorial discretion that was being exercised.
Chief Justice Roberts: Justice Kagan?
Justice Kagan: I mean, let me ask the -- the -- the same kind of question in a different way. Suppose that, instead of this law, you -- you -- you had a law that was focused, it excluded the kind of curated news feeds, where your argument about editorial discretion sort of leaps out. So this law didn't touch those. But Official 1 it said, you know, with respect to Gmail and direct messaging and Venmo and Dropbox and Uber, with respect to all of those things, a site could not discriminate on the basis of viewpoint, just as maybe a site couldn't discriminate on the basis of race or sex or sexual orientation or what have you. So it just added viewpoint to the list. Wouldn't that be all right?
Paul D. Clement: I -- I actually don't think it would be all right because all of those things are still in the expressive business. And I also think --
Justice Kagan: Well, do you think that -- you know, suppose it didn't say viewpoint; it just said you can't discriminate on the basis of, you know, all the usual protected characteristics. Is -- is that all right?
Paul D. Clement: That would probably be all right, but it wouldn't save the whole statute from being --
Justice Kagan: Well, so this is just on this statute. You -- you know, it's just -- it's a -- it's a statute about -- it excludes Official 1 YouTube and Facebook, and -- you know, the Facebook news feed.
Paul D. Clement: Right.
Justice Kagan: But it's just direct messaging, Venmo, all of those kinds of things. And it just said, you -- you know, we're not going to let you exclude on the basis of race and sex and we're also not going to let you exclude people on the basis of viewpoint.
Paul D. Clement: So, I mean, the first part of that statute I don't think my clients would even challenge. I mean, whether there's an abstract First Amendment right to have the black authors table for black history month --
Justice Kagan: And also on the basis of viewpoint.
Paul D. Clement: When -- when you throw viewpoint into there, then I think, I -- you know, I'd have to ask my clients whether they'd challenge that statute. But, obviously, that's not the -- the -- the -- the statute we have here. And if you think about --
Justice Kagan: I guess what I'm saying is in part it is the statute you have Official 1 here.
Paul D. Clement: I -- I -- I --
Justice Kagan: And that's -- and -- and -- and -- and that gives you your plainly legitimate sweep, because all it's saying is that when you run a service where you're not speaking, unlike in Facebook feed, where your editorial discretion argument is good because the -- the -- the platform is engaged in speech activities. Well, when you're running Venmo, you're not engaged in speech activities. And so, when a state says to you, you know what, you have to serve everybody, irrespective of whether you like their political opinions or not, then it seems you have a much less good argument, but this statute also says that, doesn't it?
Paul D. Clement: Not really, Justice Kagan. And I think we're in danger of losing sight of the actual statute. So let me take you to Petition Appendix 97A and the definition of "censor" used in the statute. It says, "censor includes any action taken by a social media platform to delete, regulate, restrict, edit, alter, inhibit the Official 100 publication or republication of, suspend a right to post, remove, or post an addendum to any content or material posted by a user. The term also includes actions to inhibit the ability of the user to be viewable or to interact with another user of the social media platform." Censor is all about the expressive activity. Post-prioritization is all about it. It specifically talks about a news feed, a feed, a view, search results, and they give essentially political candidates and journalistic enterprises a right to sort of non-discrimination, so they're going to pop up there even though, like, I have no interest in politics, I just want to look at, you know, feeds about Italian bicycles, and I'm still going to get these Florida politicians popping in there? That's what this statute does. And then you go through, shadow ban. Shadow ban's not about any of the things you're talking about. Shadow ban is all about content. And then we go to journalistic enterprises. They get pride of place. Then we talk about post-prioritization. That's all about how you Official 101 display the content. So like may -- maybe the 30-day provision, you could sort of say that, well, that applies to, like, Uber, but even then, if Uber wants to change its comment policies because all of a sudden, you know, they did one thing to try to, you know, deal with one set of issues and then a problem comes up and there's a whole bunch of, like, people using the comments in a really rude way, like, why couldn't they change their editorial policy on the -- on the comments? I just don't understand it. And then all of the duty-to-explain provisions. The duty-to-explain provisions are all driven by decisions to exclude conduct -- content. And that happens a billion times a quarter at YouTube. So that's a crushing blow. It has nothing to do with some of the other things you're talking about.
Justice Kagan: Thank you.
Chief Justice Roberts: Justice Gorsuch? Justice Kavanaugh?
Justice Kavanaugh: Can I just pick up on the word "censorship" because I think it's Official 102 being used in lots of different ways. So, when the government censors, when the government excludes speech from the public square, that is obviously a violation of the First Amendment. When a private individual or private entity makes decisions about what to include and what to exclude, that's protected generally editorial discretion, even though you could view the private entity's decision to exclude something as "private censorship."
Paul D. Clement: Absolutely. That was the whole thrust of this Court's decision in Halleck. And I suppose the Hurley case might have been a completely different case if that was an official City of Boston parade and the City of Boston decided to exclude the group. The whole reason that case came down the way it did unanimously is because it was a private organization exercising its First Amendment right to say we don't want GLIB in our parade.
Justice Kavanaugh: How does -- how does 303 fit into that?
Paul D. Clement: Well, I think 303 is Official 103 just further evidence that, you know -- I mean, you know, obviously, I think 303, where 303 is most relevant is that, you know, Colorado in that case tried to rely on FAIR, much the way my friends here rely on FAIR, and this Court made clear in 303 Creative, no, it doesn't work that way. You know, this is expressive activity. And -- and -- and so -- you know, and -- and the fact that my friend's best case is FAIR, I think, just shows how radical this statute is, because this targets expressive activity in its core. If the Solomon amendment said to the law schools, you have to give the military equal time in the classroom, I think the case would have been 9/0 the other way. And that's essentially what the -- what -- what Florida is trying to do here.
Justice Kavanaugh: And then, on the procedural posture, I think this is important to try to understand what's exactly before us, and you've gotten questions on this, but I want to nail it down for my -- my benefit, which is you said that they came in and opposed a PI solely on the ground that what was involved here was Official 104 not expressive activity or speech but, instead, conduct. Is that accurate?
Paul D. Clement: That -- that -- that's accurate. It came up in the context of how much discovery we were going to have before we had the preliminary injunction hearing, and in that context, the State says, look, we -- we're going to sort of, you know, kind of rest on this kind of threshold question, as my friend said, and that we'll limit discovery on both sides and then, in the Eleventh Circuit, it was even more clear because, in the Eleventh Circuit, the position of the State of Florida was like, we're not going to really engage on intermediate scrutiny at all. We're -- we -- we're putting all our eggs in the expressive eggs basket.
Justice Kavanaugh: So, if we think that the statute does target expressive activity in some respects and we affirm in this case, what is left to Justice Gorsuch's question? What's left to happen -- that just means it can't go in place for the next year or two until a final judgment. What -- what will happen in the litigation? Official
Paul D. Clement: So there'll be litigation on the merits. I don't even think we're past the point where we could amend, so if this Court tells us we sure better have an as-applied challenge in there, I suppose we could do that. But the point is the litigation will go on. There will be discovery. Unless -- unless Florida decides at that point that the writing's on the wall and it tries to pass a more narrow statute, but, otherwise, there would be discovery, there would be, you know, essentially, the whole nine yards. But, in -- in the interim, I -- and -- and, you know, I just can't emphasize enough particularly that $100,000 civil penalty provision.
Justice Kavanaugh: All that's before us then is what should happen in the interim before final judgment and it comes back to us potentially a year or two from now. Should it be in effect or not be effect until it comes back to us?
Paul D. Clement: Yeah.
Justice Kavanaugh: Correct?
Paul D. Clement: If it comes back to you. Official 106 Yes.
Justice Kavanaugh: If it came back to us or it goes to the court of appeals. And what will happen -- I mean, you've alluded to it, but what will happen in that year, do you think? Because I don't think we've heard much about exactly what you're concerned about. In other words, you're very concerned about this. That's obvious. But what -- what are the specifics of that?
Paul D. Clement: Well, I -- I mean, honestly, if this statute goes into effect, we'd sort of have to fundamentally change our business models, and I think each company is going to make their own judgment about how they'd come into compliance. I think, you know, part of the irony here is that as to one of -- you know, they -- they say this is going to promote speech, but -- but they allow us to discriminate on the basis of content as long as we do it consistently. So, you know, what -- what we might do in the interim, at least some of these companies might do is, you know, just, like, well, let's do only puppy dogs at least in Florida until we Official 107 can get this straightened out because that's the one way that -- because, you know, these same companies are getting hammered by people that say we're not doing enough to keep material that's harmful to children off of these sites. And yet these laws make it impossible for us to keep material that's -- that's harmful to children off of our sites unless we take so much material off of our sites that nobody can say that we're not being inconsistent or not discriminating. And in Texas, it's viewpoint discrimination.
Justice Kavanaugh: Could you just say a word about the word "consistency," what you think that entails?
Paul D. Clement: I have no idea. And one of the other cases -- you know, arguments we have in this case, it's just not part of the preliminary injunction you have before us is a vagueness challenge. And I think, when you're targeting editorial discretion, to put a consistency requirement -- I mean, if you tried to tell The New York Times to be -- I mean, I don't -- I haven't met anybody who thinks The New York Official 108 Times is a hundred percent consistent in its editorial policy. But, if you put a state action requirement that they editorialize consistently or somebody can sue them for $1,000 or the state can haul them into court, I think that would be the most obvious First Amendment violation in the world.
Justice Kavanaugh: Thank you.
Chief Justice Roberts: Justice Barrett?
Justice Barrett: I have a practical question. So let's assume that I agree with you about YouTube and Facebook feeds, news feeds, but that I don't want to say that Facebook Marketplace or Gmail or DMs are not within the statute's plainly legitimate sweep. If I -- if I asked you the question can you still win, I know that you'll say yes, but how would it -- how would we write that opinion given the standard --
Paul D. Clement: Well, I -- I --
Justice Barrett: -- without having to canvass whether all of those things would be within the plainly legitimate sweep? Official
Paul D. Clement: I -- honestly, I'm not sure -- well, I'm not sure you could reach that result without definitively holding that that stuff is within the plainly legitimate sweep of the statute. You don't have the record for that in part because of litigation decisions that were made by the State of Florida. So I think what you would do is you would affirm the preliminary injunction, and then you would perhaps lament the fact that the record here is somewhat stunted, and then you would make clear that there might be a possibility to modify the preliminary injunction on -- on remand. Now, at that point, I think, when the lower court sort of sees all the details about how these things actually operate, they might not have the same skepticism that you're starting with. But I think there's lots of ways to write the decision that keeps the -- you -- you know, and, again, what's -- what's in place right now is a preliminary injunction for the benefit of my clients. So people that haven't sued yet, I mean, you know, the statute in theory could apply to them. But my clients have the benefit Official 110 of a preliminary injunction while this litigation goes forward. And, obviously, anything this Court says in its opinion that suggests what the future course of that litigation should be, you know, is -- is going to be powerfully, you know, effective in terms of how this case gets litigated in the district court.
Justice Barrett: Thank you.
Chief Justice Roberts: Justice Jackson?
Justice Jackson: So, Mr. Clement, I just want to push back for a minute on the private versus public distinction. I mean, I -- I think we agree that the government couldn't make editorial judgments about who can speak and what they can say in the public square. But what do you do with the fact that now, today, the Internet is the public square? And I appreciate that these companies are private companies, but if the speech now is occurring in this environment, why wouldn't the same concerns about censorship apply?
Paul D. Clement: So two reasons, Your Honor. I mean, one is I -- I really do think Official 111 that censorship is only something the government can do to you. And if it's not the government, you really shouldn't label it "censorship." It's just a category mistake. But here's the second thing: You would worry about this if websites, like the cable companies in Turner, had some sort of bottleneck control where they could limit your ability to go to some other website and engage in speech. So, if the way websites worked was somehow that if you signed up for Facebook, then Facebook could limit you to only 19 other websites and Facebook could dictate which 20 websites you saw, then this would be a lot more like Turner. But, as this Court said in Reno in 1997, when it was confronted with an argument about the then-fresh Turner decision, this Court basically said the Internet is like the opposite of Turner. You know, there's so much information out there, the -- it's so relatively easy to have a new website come on and, like, reality tells us that, right? You know, like, X is not what Twitter was, and TikTok came out of nowhere. And -- Official
Justice Jackson: All right. I think I get your point.
Paul D. Clement: Yeah.
Justice Jackson: Let me just ask you about the illegitimate sweep point. So what is illegitimate about a government regulation that attempts to require these companies to apply consistently their procedures? I don't -- I guess I don't understand why the enforcement of sort of antidiscrimination principles is illegitimate.
Paul D. Clement: So consistency when what is being regulated -- as a -- as a government mandate when what is being regulated is expressive activity is, I think, a clear First Amendment violation. And I don't think -- I mean, you know, some of these judgments are very tricky judgments. You know, okay, well, we -- we're going to -- we're going to take some of the stuff sort of celebrating October 7 off, but we want to have some --
Justice Jackson: All right. What about a straightforward one, right? I understood that one of these was no candidate can be deplatformed. That seems pretty Official 113 straightforward.
Paul D. Clement: Right. And I think it's straight --
Justice Jackson: Right, and so why isn't that enforcing antidiscrimination principles with no candidate -- if somebody is a candidate for office, they can't be deplatformed?
Paul D. Clement: So that means they can't be deplatformed no matter how many times they violate my client's terms of use, no matter how horrible their conduct, no matter how misrepresenting they are in their speech. We still have to carry it and not just have to carry it, but under this statute, we have to give it pride of place. And it doesn't take much to register as a candidate in Florida. And so this gives a license to anybody, even if there is, you know, somebody who's only going to poll, you know, 2 percent in their local precinct, they can post anything they want, they can cause us to fundamentally change our editorial policies and have to ignore our -- our terms of use where --
Justice Jackson: Thank you. Official
Chief Justice Roberts: Thank you, counsel. General Prelogar. ORAL ARGUMENT OF GEN. ELIZABETH B. PRELOGAR FOR THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE RESPONDENTS
Elizabeth B. Prelogar: Mr. Chief Justice, and may it please the Court: The First Amendment protects entities that curate, arrange, and present other people's words and images in expressive compilations. As this Court's cases have -- has held, those principles cover newspaper editors, parade sponsors, and web designers. It also covers social media platforms. Those platforms shape and present collections of content on their websites, and that inherently expressive activity is protected by the First Amendment. That doesn't mean, though, that every business that transmits speech can claim First Amendment protection for that conduct. For example, telephone and delivery companies that carry speech from point A to point B aren't shielded by the First Amendment when they provide that service. But that's because Official 115 they're not producing any expression of their own. It's not because there's some kind of common carrier or communications company exception to the First Amendment. None of this is to say that social media platforms are immune from government regulation. And governments at every level obviously have an important interest in facilitating communication and the free exchange of ideas. But, in promoting that interest, governments have to stay within the bounds of the First Amendment. And these state laws which restrict the speech of the platforms to enhance the relative voice of certain users don't withstand constitutional scrutiny. I welcome the Court's questions.
Justice Thomas: Normally, you are defending regulations. But are you -- if -- if -- if the U.S. Government did exactly what these Petitioners -- Respondents are doing, would that be government speech?
Elizabeth B. Prelogar: So, if I'm understanding the hypothetical correctly, Justice Thomas, if you're suggesting that the government itself would open a forum and allow Official 116 users to post messages on that, you know, I think that that would implicate First Amendment principles because the -- because the government might create -- be creating something like a public forum where it would itself be bound by the Constitution. I don't think that that would all necessarily qualify as the government's own speech.
Justice Thomas: But --
Elizabeth B. Prelogar: But the critical difference here, of course, is that these platforms are private parties. They're not bound by the First Amendment as an initial matter.
Justice Thomas: The -- Mr. Clement said the difference is that if the government does it, it is censoring. If a private party does it, it is -- I forget -- content moderation. These euphemisms bypass me sometimes. But -- or elude me. The -- do you agree with that distinction?
Elizabeth B. Prelogar: Yes. I mean, the -- the critical difference is that, as Justice Kavanaugh observed, the government's bound by Official 117 the First Amendment. And so, if it were to, for example, dictate what kind of speech has to appear and in what order, you know, that -- that could create a First Amendment violation. But, here, it's the private platforms themselves that are making that expressive choice. And -- and our recognition here is that they're creating their expressive -- their own expressive product in doing so.
Justice Thomas: Now --
Elizabeth B. Prelogar: These are websites that are featuring text elements, speech elements, photos, videos, and the platforms, which are private parties not bound by the Constitution, are deciding how they want that to look, what content to put on it and in what order. That's an inherently expressive activity.
Justice Thomas: What are they saying?
Elizabeth B. Prelogar: So it depends on the platform, the -- the various value judgments that are embodied in its content moderation standards, you know. The -- the -- I think there's a wide variety in the kind of content that the platforms deem objectionable, the -- Official 118 the kind of content they think might be harmful or will drive away users and advertisers. There's no one single message that each platform is conveying. But I guess, if you wanted to look at the lowest common denominator, you know, at the very least, it seems like their content moderation policies embody a judgment of this is material we think might be of interest to our users or that the users will find interesting and -- and worthy of looking at. So it's a lot like the parade in Hurley in that circumstance, where the Court specifically said maybe you're lenient, you let a lot of content in, you can't identify a single discernable message from the parade as a whole, but there is still the baseline of the parade sponsors signaling this is something that's worthy of looking at in my parade.
Justice Gorsuch: General, you -- you indicate in your brief that NetChoice sometimes errs by suggesting that the dissemination of speech is always expressive activity. And I just wonder how we're supposed to deal with that fact if I agree with you in this facial Official 119 challenge context and particularly when many of the platforms, while reserving the right to prohibit various kinds of posts, most of which are consistent with Section 230, also say and guarantee users "a right to express their ideas and opinions freely." I'm quoting from one of them. And even if the platform disagrees and they say that they "do not endorse and are not responsible" -- again, I'm quoting from some of these terms of service -- sure sounds a lot like conduit, doesn't it?
Elizabeth B. Prelogar: So I think there is a big difference between a pure conduit, the kind of company that is, you know, quite literally engaged in carrying speech, transmitting it, whether that's across the telephone wires or via telegraph or on a delivery truck like UPS and FedEx, a big difference between that kind of conduct -- conduit and what the platforms are doing here, because they're not just literally facilitating users' ability to communicate with other users. Instead, they're taking that and arranging it and excluding it.
Justice Gorsuch: But some of them are Official 120 promising that they're not going to interfere, and they're promising you get to express your views freely and openly, and they're promising that they -- that -- and they're representing, rather, that your views don't represent theirs and everybody understands that. And those -- those are their terms of service. And -- and this is a facial challenge again, and I'm -- I -- I -- I just think separating the wheat from the chaff here is pretty difficult. Can you help us with that?
Elizabeth B. Prelogar: Sure. And, you know, I think looking at their terms of service, I -- it's certainly true that many of the platforms have generally indicated that they welcome a wide variety of views, but it would be incorrect to say that they're holding themselves out as forums for all possible speech. Those same terms of service contain the kind of editorial policies that are at issue here. And the -- the state laws are narrowly targeted on the kind of speech the platforms want to include. So --
Justice Gorsuch: Yes, I -- Official
Elizabeth B. Prelogar: -- it wouldn't be implicated in --
Justice Gorsuch: -- I acknowledge that their terms of service also include the -- the right to exclude certain -- certain speech, but those are usually like the Section 230 things, the way they discuss it, the lewd, lascivious, obscene, the blah, blah, blah, and after that, they do seem to promise a whole lot of latitude. And when you look at classic common carriers, it's very similar. It's -- they don't give up the right to exclude certain -- certain activities or speech that might be detrimental to their business or that might be otherwise regulated. That -- that holds true for telegraphs. It holds true for telephones even. But, beyond that, bare minimum, they're open to all comers, and that seems to be how a lot of them are representing themselves to the public at least.
Elizabeth B. Prelogar: The key difference, though, with common carriers, the -- the kinds of industries that have traditionally been regulated, those in the transportation sector, Official 122 railroads, some of the communications companies and so forth, is that they're not creating any kind of expressive speech product in providing their service, and so government regulation that says don't discriminate based on content --
Justice Gorsuch: Well, the telegraph companies argued just the opposite back in the day --
Elizabeth B. Prelogar: But I think that those claims failed --
Justice Gorsuch: -- and they lost.
Elizabeth B. Prelogar: -- because, although they are transmitting the messages, they aren't themselves creating any speech on the side.
Justice Gorsuch: Oh, they said they were. They -- they -- in fact, they curated a lot of the speech or tried to, including political speech which they didn't agree with.
Elizabeth B. Prelogar: I think it's wrong to call that curation. It's certainly true they tried to adopt certain discriminatory policies --
Justice Gorsuch: Well, whatever -- whatever euphemism one wishes to choose. Official
Elizabeth B. Prelogar: But they weren't taking that speech out and putting it into a compilation that's expressive. That's the difference here.
Justice Gorsuch: On -- on that --
Elizabeth B. Prelogar: This is a -- a --
Justice Gorsuch: Okay, okay. So --
Elizabeth B. Prelogar: Yeah.
Justice Gorsuch: -- if they're not -- if the -- if the expression of the user is theirs because they curate it, where does that leave Section 230? Because the protection there, as I understood it -- and Justice Thomas was making this point -- was that Section 230 says we're not going to treat you as publishers so long as you are not -- it's not your communication "in whole or in part" is what the definition says. And if it's now their communication in part, do they lose their 230 protections?
Elizabeth B. Prelogar: No, because I think it's important to distinguish between two different types of speech. There are the individual user posts on these platforms, and that's what 230 says that the platforms can't be Official 124 held liable for. The kind of speech that we think is protected here under the First Amendment is not each individual post of the user but, instead, the way that the platform shapes that expression by compiling it, exercising this kind of filtering function, choosing to exclude none of those things above --
Justice Gorsuch: Let -- let me interrupt you there, I'm sorry, but -- but I understand it's not their communication in whole, but it's -- why isn't it their communication in part if it -- if it's part of this larger mosaic of editorialized discretion and the whole feel of the website?
Elizabeth B. Prelogar: Well, I don't think that there is any basic incompatibility with immunizing them as a matter of -- of Congress's statutory choices and recognizing that they retain First Amendment protection --
Justice Gorsuch: Isn't the whole premise -- I'm sorry --
Elizabeth B. Prelogar: -- for the First Amendment --
Justice Gorsuch: -- the whole premise Official 125 of Section 230 that they are common carriers, that -- that they're not going to be held liable in part because it isn't their expression, it -- they are a conduit for somebody else?
Elizabeth B. Prelogar: No, not at all, Justice Gorsuch. I think, you know, to the extent that the states are trying to argue that Section 230 reflects the judgment that the platforms aren't publishing and speaking here, there would have been no need to enact Section 230 if that were the case. Congress specifically recognized the platforms are creating a speech product. They are literally, factually publishers. And Congress wanted to grant them immunity. And it was for the purpose of encouraging this kind of editorial discretion. That's the whole point of the "Good Samaritan" blocking provision, 230(c)(2)(A).
Chief Justice Roberts: General, there's been a lot of talk about the procedural posture of the case, how it was litigated below, what's available if it -- it goes back, when it goes back. I -- I'd like your views on that.
Elizabeth B. Prelogar: Yes. So we Official 126 presented our arguments in this case taking the way it had been litigated at face value, and what that means is that below Florida treated this law as though the central provision and scope was focused on the -- the true social media platforms, the thing that -- the website you have in mind when I use that term, things like YouTube and X and Facebook. And Florida's presentation to the lower courts was this law isn't a regulation of their speech at all and so it's valid. So I understand the force of the questions that the Court has been asking today about are there other types of websites that might be covered, could this extend to direct messaging. You know, we don't really have a dog in that fight. To the extent that there are those other applications of the law out there, that's not how Florida sought to defend it. And to Justice Barrett's question, you know, what should the Court do with this, it's been litigated one way and now it looks like maybe there are other possible applications you would have in mind, I would urge the Court to take a really narrow approach here. Official 127 Florida defended this law on the basis that it could control what the true social media platforms are doing with respect to their expressive websites, and if I were the Court, I would really want to reserve judgment on the application to e-commerce sites, to -- to companies like Uber, which don't seem to be creating a comparable type of expressive product. And I think the Court could save those issues for another day or for further factual development in this case while looking at the decision on the record that was created based on those litigation judgments by the parties.
Justice Sotomayor: Am I correct --
Chief Justice Roberts: Justice Thomas --
Justice Sotomayor: I'm sorry.
Chief Justice Roberts: -- anything further?
Justice Thomas: No.
Chief Justice Roberts: Justice Alito?
Justice Alito: Yeah, I'm baffled by your -- your -- your answer to the -- the Chief Justice. Didn't Florida argue that this -- that Official 128 a preliminary injunction should not be issued because the plaintiffs had not shown that they were likely to succeed on their facial challenge? Did they not make that argument?
Elizabeth B. Prelogar: They made that overarching argument, but they didn't go further and say and the reason for that is because here's direct messaging. And it's lawful as applied to that --
Justice Alito: All right. Well, do you think that issue is not before us?
Elizabeth B. Prelogar: I think it would be hard for the Court to figure that issue out because there's a lot of lack of clarity --
Justice Alito: Oh, well, it may be hard for us to figure out, but my question was, is the issue before us?
Elizabeth B. Prelogar: I think that the way Florida litigated this case makes it difficult to say that the issue is properly before you. Usually, the Court holds a party to the arguments it pressed below and that were passed upon below, and there is no court in this case that has considered -- questions about other types of platforms or about other types of Official 129 functionalities.
Justice Alito: If the record is insufficient to allow us to comfortably decide whether the facial stand -- facial challenge standard or an overbreadth standard is met, isn't that the fault of the plaintiffs, and isn't the remedy to vacate and remand for all of that to be fleshed out, and that would not mean -- that wouldn't say anything necessarily about what will happen in the near future. It would mean that it would be litigated and perhaps, if the plaintiffs developed the record in the way that Florida thinks they should and provides a -- a list of all of the -- all of the NetChoice members who are covered by this and goes through all of the functions that they perform and assesses whether the law is unconstitutional in every application or whether it has a legitimate scope that is constitutional, then they would be entitled to a preliminary injunction.
Elizabeth B. Prelogar: So I -- I certainly don't want to resist the idea that if this Court thinks those issues are properly before it and affect the analysis of the facial challenge, Official 130 notwithstanding the way the parties litigated the case, I -- I don't want to stand in the way of that. I do think there would be a lot of value, though, in the Court making clear that with respect to Florida's defense of this law in the lower courts, namely, the idea that the state really can control the curation and editorial function of the true social media platforms with respect to their expressive product, that seems to me a type of provision that is invalid in all of its applications with respect to those platforms.
Justice Alito: Could I just ask you to comment on a few things I understood Mr. Clement to say. So I understood him to say that an email -- that the email function could be denied on the basis of -- access to that could be denied on the basis of viewpoint. Direct messaging could be denied on the basis of viewpoint. Do you -- do you agree with that?
Elizabeth B. Prelogar: No, we disagree with that. We think that both direct messaging and email service seems a little more like the Official 131 pure transmission of communications, so we would likely put those in the box of the phone company, the telegraph company, Internet service providers, and so forth. We don't think that that's an inherently expressive product in the same way as the main website that has the news feed and that's curating the stories and deciding how to prioritize them.
Justice Alito: Do you -- do you agree that discrimination on the basis of bigness violates the First Amendment?
Elizabeth B. Prelogar: No, I don't think that on -- that on its own, simply trying to regulate based on the size of a company is -- is always a First Amendment problem.
Justice Alito: Do you agree that a private party cannot engage in censorship? Let me give you an example. Suppose that a private law school says that any student who expresses support for Israel's war with Hamas will be expelled. Is that -- would that be censorship, or would that be content moderation?
Elizabeth B. Prelogar: So I think the --
Justice Alito: Because it's a private Official 132 party.
Elizabeth B. Prelogar: Yeah. So I guess the first-order question would have to be, is there some kind of regulation that prohibits the law school from acting in that way? So, if you're thinking about a public accommodations law, for example --
Justice Alito: No. I'm just saying -- I'm just talking about terminology.
Elizabeth B. Prelogar: Oh, colloquial terminology? You know, I -- I --
Justice Alito: That's -- that's not censorship; that's content moderation --
Elizabeth B. Prelogar: I -- I -- I think that --
Justice Alito: -- because it's a private party?
Elizabeth B. Prelogar: -- the semantics of it don't matter. You could say that the parade in Hurley was censoring the -- the GLIB contingent that wanted to march or that the newspaper in Tornillo was censoring the candidate who wanted to publish his speech. You know, I think that the particular word you use doesn't matter. What you have to Official 133 look at is whether what's being regulated by the government is something that's expressive by a private party, and, here, we think you have that.
Justice Alito: Well, I mean, the -- the particular word that you use matters only to the extent that some may want to resist the Orwellian temptation to recategorize offensive conduct in seemingly bland terms. But, anyway, thank you. (Laughter.)
Chief Justice Roberts: Justice Sotomayor?
Justice Sotomayor: General, I think I'm finally understanding the argument, but let me make sure I do, okay? When I came in, I had the reaction Justice Alito did, which is we should vacate and remand. And I have been thinking about what does that do the -- to the preliminary injunction, because I agree with you, as I understand what the State did below, was to say we don't have to offer you any justification for any part of our law because everybody of these social media companies are common carriers. Official 134 And I think what's clear is -- from our questioning -- that that's not true, that there are many functions that are expressive that we can't say are common carriers. But, even if we did say they were like common carriers, it -- the issue would be one of what's the level of scrutiny. And the State said there's no level of scrutiny we're going to address. They basically said we can do anything we want to common carriers and to any of the expressive platforming or deplatforming things. But I don't even think that's true. They can't come in and -- I -- and I'm not sure they can -- do any of these things or some of these things even to common carriers if it -- it is a sort of content or viewpoint content exclusion. So a common carrier doesn't have to permit unruly behavior. Doesn't have to permit -- it can throw somebody off the train if they are threatening somebody else or if they're doing other things. So I -- I guess what you're saying is let's keep the injunction in place, vacate and Official 135 remand -- affirm on the preliminary injunction but vacate and remand on the application of this law and how based on what level of scrutiny given the function that's at issue, correct?
Elizabeth B. Prelogar: So we do think that the Court should hold the parties to the way they litigated this case and teed it up for the Court's review. And it's uncommon for the Court to start considering new arguments that weren't presented by the party defending its law below. But -- but, if I can respond for a moment on the common carrier point, Justice Sotomayor, because I think you've put your finger on a really important response here to many of the arguments that Florida is making. They suggest that the designation of a platform as a common carrier or not has some kind of talismanic significance. But it's completely irrelevant to answering the First Amendment question because it's not like companies that are treated as common carriers have no First Amendment rights with respect to their expressive activities. You know, you can take a railroad like Amtrak and you can regulate it as a common Official 136 carrier with the transportation of passengers, but if it creates some kind of magazine for those passengers to peruse, that's entitled to -- to full First Amendment protection. And the reason that the non-discrimination mandate in the common carrier scenario usually poses no problem under the First Amendment is there's no speech or expressive activity in carrying passengers or in carrying communications. It's entirely different with respect to the activity that Florida is seeking to regulate because that is inherently expressive. It's putting together literally a website with pictures and video and text and arranging it. And that looks just like the kind of protected editorial and curatorial activity the Court has recognized in other cases. So whether you say they're a common carrier or not we think is entirely beside the point.
Chief Justice Roberts: Justice Kagan?
Justice Kagan: I think I want to try again on this question of, like, where does this leave us? Because suppose that I agree with Official 137 pretty much what you said. Let's just take that as an assumption, which is, you know, when Florida is trying to regulate Facebook news feed, well, it can't do that because Facebook news feed is itself providing a kind of speech product. But, when Florida is trying to regulate Gmail, well, maybe it can do that because Gmail is not in the business of providing that sort of speech product. And if you take it -- and if we again assume that this statute covers a variety of things that are Gmail-like, direct messaging and -- and Uber and, you know, things that are not creating speech products, and we have this First Amendment doctrine that says, if you can find a legitimate sweep, we can't overrule something facially, but you don't really want to keep -- you -- you don't want -- really want to allow this law to go into effect because of the unconstitutional applications that you're talking about with respect to all these companies that are creating speech products, what do we do?
Elizabeth B. Prelogar: So I guess, if you Official 138 were confident that the state law had these applications and that the particular provisions would regulate the kinds of -- of companies that you're referring to that aren't creating an expressive speech product, then I think that that would poke holes in the theory of facial invalidity. But I don't think you can have that certainty because that's not how Florida litigated this case below. It's not as though it said this statute is not invalid on its face because it applies to Gmail or other --
Justice Kagan: I -- I take your point. We could just say, gosh, we can't -- we can't even think about those questions because this was litigated in a certain way. So that's one option. But suppose we think it's pretty obvious that this covers a lot of stuff that does not look like Facebook feed and we wanted -- I mean, suppose we were to -- you know, we -- we can take notice of that, then what?
Elizabeth B. Prelogar: Okay. So I think, at that point, what I would do if I were the Court is make clear that with respect to the Official 139 issues Florida did present and that the Eleventh Circuit and the district court resolved, Florida is wrong to say that it can apply these provisions to the social media companies that are engaged in creating an expressive product and make that much clear. Otherwise, I think, if the Court just vacates and sends it back, it'll be right back up here on -- in an emergency posture, again on an as-applied basis, with respect to one of those companies. So I think the Court can decide that much. That was the issue that was litigated below and decided. And then, if you think that there are some additional questions about the scope of the Florida law and whether it might have valid applications along the lines we've been discussing, you know, I -- I don't have a particular interest on behalf of the United States in what you do with the preliminary injunction in the meantime. I think there's a lot of force to the idea that this is backed up by $100,000 in penalty per violation, and that could have a huge chilling effect on any protected speech out there that's occurring. Official 140 But, you know, I think the Court could say there are some unresolved issues about concrete applications of this law and await further factual development on that.
Justice Kagan: Thank you.
Chief Justice Roberts: Justice Gorsuch?
Justice Gorsuch: This is a facial challenge, right? It's an all-or-nothing deal. How is a court supposed to make as-applied rulings in a facial challenge on remand?
Elizabeth B. Prelogar: I would do it based on the party presentation principle and the fact --
Justice Gorsuch: No, I got the first point.
Elizabeth B. Prelogar: Yeah. Yeah. I -- I --
Justice Gorsuch: The first --
Elizabeth B. Prelogar: So I might run out of options --
Justice Gorsuch: Yeah.
Elizabeth B. Prelogar: -- beyond that, Justice Gorsuch.
Justice Gorsuch: After the first one, Official 141 I --
Elizabeth B. Prelogar: I -- I agree that these are hard questions asked --
Justice Gorsuch: Right. So the first -- it's the first one you --
Elizabeth B. Prelogar: Now I suppose you could certify to the Florida Supreme Court the unresolved issues of Florida law if you think that that is necessary to actually reach a disposition in this case.
Justice Gorsuch: Okay. Thank you.
Chief Justice Roberts: Justice Kavanaugh?
Justice Kavanaugh: I just want to follow up on Justice Alito's questions, and -- and he'll have the opportunity since this is continuing to follow up on mine if he wants to. (Laughter.)
Justice Kavanaugh: But the -- I think he asked a good, thought-provoking, important question and used the term "Orwellian." When I think of "Orwellian," I think of the state, not the private sector, not private individuals. Maybe people have different conceptions of "Orwellian," but the Official 142 state taking over media, like in some other countries. And in Tornillo, we made clear, the Court made clear, that we don't want to be that -- that country, that we have a different model here and have since the beginning, and we don't want the state interfering with these private choices. Now Tornillo then dealt with -- and this is my question. Tornillo dealt with the idea, well, newspapers have become so concentrated and so big that maybe we should have a different rule. In Tornillo, in -- in the Court's opinion, Chief Justice Burger's opinion for a unanimous court talked about those -- those changes. I mentioned those before. He says, those changes have placed in a few hands the power to inform the American people and shape public opinion. "The abuses of bias and manipulative reportage are said to be the result of vast accumulations of unreviewable power in the modern media empires. In effect, it is claimed the public has lost any ability to respond. The monopoly of the means of communication allows for little or no critical analysis of the media." Official 143 And then, though, he -- and he says, "From this premise, it is reasoned that the only effective way to ensure fairness and accuracy to provide for some accountability is for government to take affirmative action." And then he goes on and explains no, we're not going to do that. The First Amendment stands against that. "However much validity may be found in these arguments, at each point, the implementation of a remedy calls for some mechanism, either government or consensual. And if it's governmental, that's just one brings about a confrontation with the express provisions of the First Amendment. Compelling editors or publishers to publish that which reason tells them should not be published is what is at issue in this case." And so he says for the Court in 1973, no, we're not -- we don't have a big exception to the idea that the First Amendment distinguishes the state from the private sector and private individuals. Now my -- here's my question. We're 50 years later. How does that principle articulated in Tornillo apply to the current Official 144 situation, the current bigness?
Elizabeth B. Prelogar: So I think that Tornillo does establish a bright-line proposition that the -- the state, even if it has these concerns about market power and dominance and control, cannot directly overtake the editorial function and prevent a private party that's creating an expressive product from making those kinds of judgments about how to present that product. But, at the same time, I think that there are legitimate concerns here about the kind of power and influence that social media platforms wield. And I want to emphasize it's not like the government lacks tools to deal with this. It's not as though it can't regulate at all. There is a -- a whole body of government regulation that would be permissible that would target conduct, things like antitrust laws that could be applied or data privacy or consumer protection, things that we think wouldn't come into any conflict with the First Amendment at all. And even in a situation where the government does think that it's necessary to Official 145 regulate in a manner that's going to affect protected speech rights, that's not the end of the inquiry. You still have a chance as the government to establish that your regulation can pass constitutional muster like it did in the Turner case that you were referring to earlier. So I want to be very clear that we are not suggesting that governments are powerless to respond to some of the concerns that Justice Alito mentioned. You know, I think one natural place to go as a government is to disclosure, to ensuring that if you think that platforms have Orwellian policies, you at least make sure users have information about how they're acting, what their policies are, the kind of generalized disclosure requirements here that were not invalidated by the lower courts and aren't before this Court.
Justice Kavanaugh: On Turner, the key was content-neutral there, right?
Elizabeth B. Prelogar: Yes. So Turner concluded that the interest -- the governmental interest --
Justice Kavanaugh: Or one key.
Elizabeth B. Prelogar: -- that was Official 146 asserted there, as you put it, was unrelated to the suppression of expression. And the problem here, you know, my friend suggested that Florida has precisely the same interest. But, here, the interest that Florida has asserted in affecting these content moderation choices is to change the speech on the platforms. It doesn't like the way that the platforms are moderating content and it wants them to create a new expressive product that reflects the state's judgments about what should go on the website, whether that's candidate speech or speech by journalistic entities or otherwise. And that is just not an interest that's unrelated to the suppression of expression. So we think the Court should apply intermediate scrutiny here and find that the State can't get out of the starting gate with that interest.
Justice Kavanaugh: Thank you.
Chief Justice Roberts: Justice Barrett?
Justice Barrett: General, I asked Mr. Clement at the end this practical question, Official 147 which Justice Kagan also asked you, and so I just want to be sure that I'm understanding maybe exactly your answer to Justice Kagan. It was different than Mr. Clement's to me. You were pointing out to Justice Kagan that if we just vacate and send it back, it's going to be right up here in an emergency posture on an as-applied challenge. So you were encouraging us to address at least this question of whether, like, the Facebook news feed or YouTube, et cetera, is expressive. But, if I think there are real problems with some of these other applications, which may be legitimate, do you think it's an option to say, you know, that we think that some of these editorial applications would be unconstitutional, but because we don't know about these other applications, they might be within the statute's legitimate sweep, that we're going to vacate and remand anyway and send it back for the court to sort out all of those other applications?
Elizabeth B. Prelogar: So I think that would be one possible approach here. You know, I want to express strong agreement with the Official 148 instinct I think that is -- is -- underlies that question that the Court shouldn't do more than is necessary here with respect to the types of applications that we've been discussing, e-commerce, you know, Gmail, or -- or websites or -- or email servers and that kind of thing. I do think they present a really distinctive set of issues. And so, if you think that those issues are properly in this case, I -- I don't think the Court has received the briefing, frankly, to try to take a stab at resolving them, but it seems like it would be a reasonable thing to do to send it back for further factual development and consideration by the lower courts.
Justice Barrett: Okay. And one other question and this is about Section 230. When you were talking to Justice Gorsuch, you were pointing out the distinction between the post and the post's content for which, you know, the -- the platform would not be liable, and then the feed, and you were saying, well, the speech -- the speech that is the platform's is not what's on the post, and that's -- you know, the -- the platform can't be Official 149 liable for that. So could a platform be liable then, say, if its algorithm or its feed boosted things like, say, the Tide POD challenge? That's different. Is that within Section 230?
Elizabeth B. Prelogar: Yeah. So I -- I think that this is, you know, a difficult issue about how 230 might apply with respect to kind of decisions that the platform is -- is making itself with respect to how to structure its service. And I want to be careful here because I have to confess that I haven't gone back recently to look at the brief we submitted in the Gonzalez case last term that I think touched on some of these issues, but I do think that there are circumstances where, of course, if the thing that's causing harm is the platform's own -- own conduct in how it structures its service, that's something that might not be immunized under Section 230. I think all of this is separate and apart from the First Amendment issue in this case, though, because, here, whether or not you think that, you know, recognizing that they have Official 150 a speech product affects the proper interpretation of the statute under 230 and means that there are some situations where they won't have immunity, that is a completely distinct question from whether they are creating a speech product that warrants First Amendment protection.
Justice Barrett: I totally agree. But I also think there are a bunch of land mines. And if that's a land mine, if what we say about this is that this is speech that's entitled to First Amendment protection, I do think then that has Section 230 implications for another case, and so it's always tricky to write an opinion when you know there might be land mines that would affect things later.
Elizabeth B. Prelogar: Yes. And I -- I certainly would think the Court could try to carefully cabin it and make clear that it's not opining on the specific statutory terms in 230 or whether this First Amendment characterization of the expressive compilation fits within the provision that Justice Gorsuch cited earlier about creating speech in whole or in part, and the Court could very clearly outline that in its Official 151 decision to try to caution lower courts away from conflating those two issues.
Justice Barrett: Thank you.
Chief Justice Roberts: Justice Jackson?
Justice Jackson: General, I hear you struggling valiantly to set aside other kinds of applications in response to a number of the questions, and I guess I can't figure out why those other applications aren't in this case. I mean, I think Florida defended the law as NetChoice challenged it, and NetChoice brought a facial challenge. And I had understood that to mean -- I mean, first, I was a little surprised that the government's brief didn't focus on that, but I had understood that -- stood that to mean that NetChoice, number one, bears the burden in this case and, number two, that NetChoice has to, you -- you know -- I guess Mr. Clement and I had a difference of opinion as to how you say it, but that burden is to show that there's either no valid application of this law or that the law has a legitimate sweep. So, if we can identify other valid Official 152 applications, if we see worlds in which Uber and, you know, money services or whatnot could be regulated, I don't understand why that does -- just doesn't mean that NetChoice has not met its burden and so that's the answer.
Elizabeth B. Prelogar: Well, I think you would have to conduct it at a more granular level, Justice Jackson, because it's not just about what are the universe of platforms out there and what functionality do they offer. You'd really have to parse the challenged provisions of the Florida law and ask: Are those platforms, you know, engaged in any kind of the relevant conduct? And I think that --
Justice Jackson: I agree with you 100 percent, but the question is, isn't it NetChoice's burden to have presented the case to us in that way? If we don't have that information, again, I say, don't they lose?
Elizabeth B. Prelogar: So I want to say again that we don't have a particular stake in how you think about their own litigation decisions on both sides, but this case very much was teed up in the lower courts as being all Official 153 about what they called the Big 3 social media companies. That's clearly the central aim of this law. It was focused not on the Ubers of the world and their comment boxes but on the core function of creating an expressive website that principally contains user-generated components, the text and the photos and so forth, and the -- the provisions that are challenged here are the ones that are focused on the type of editorial discretion that those types of platforms are engaged in. So I don't think it's as easy to say maybe we can look in the dark recesses of this law and peek around a corner and find some possible valid application. That's not how Florida sought to defend the law. And I think it would go down a complicated road to allow the core provisions of this statute to take effect.
Justice Jackson: I understand, General, but the confusion --
Elizabeth B. Prelogar: Yeah.
Justice Jackson: -- I think, is that the law on its face is really broad. We've said that. And other people, many people, have, you know, noticed that it could apply to all sorts Official 154 of things. And yet you say it was litigated below as if it was narrow. I appreciate that. But we have a facial challenge on the -- on the table.
Elizabeth B. Prelogar: Yeah.
Justice Jackson: And to the extent the entire law goes, then I suppose maybe these other lawful applications would go too. And isn't that problematic when you're talking about facial challenges?
Elizabeth B. Prelogar: Well, you are looking at this in the posture of a preliminary injunction, so I don't think that the Court is definitively resolving and -- and, you know, kind of issuing the final say on exactly what the status of this Florida law is. But -- but, look, I -- I want to agree, I have some sympathy here. In preparation for this argument, I've been working with my team to say, does this even cover direct messaging? Does this even cover Gmail? And we've been trying to study the Florida law and figure it out ourselves. We think there's a lot of ambiguity about exactly what the state law provisions require. Official 155 I -- I don't think, though, that that's a basis to not resolve the central issue in the case, which is, with respect to what we know the state law does, it would require these social media platforms that are creating the compilation of third-party speech to fundamentally alter their product that they're offering. We think that's an infringement of speech and the Court should say so.
Justice Jackson: Thank you.
Chief Justice Roberts: Thank you, counsel. Rebuttal, Mr. Whitaker? REBUTTAL ARGUMENT OF HENRY C. WHITAKER ON BEHALF OF THE PETITIONERS
Henry C. Whitaker: First, on the procedural posture, the fact that there's no record in this case is entirely NetChoice's fault. It was NetChoice who insisted in district court on litigating the PI very fast. In fact, we actually wanted to slow it down and take discovery. And what NetChoice -- and we actually even offered to voluntarily stay the law while we did that. And NetChoice says, no, we want to go fast. And they -- and the Official 156 district court obliged them, went fast. There was no meaningful opportunity to take discovery. And, in fact, when we appealed, we tried to say, hey, let's litigate this case while it's on appeal and do discovery. And they said, no, we want to stay discovery even while it's on appeal. And the district court obliged. So the fact that there's no record in this case is not Florida's fault. It is NetChoice's fault. Second, there are clearly constitutional applications of this statute, and contrary to what my friend said, it does apply to Uber. And he read you the definition of "censorship" on 97a, and right before that is the definition of "deplatforming." And Uber -- if Uber deplatforms a -- a user, that is covered by our law. If users -- if Uber says to a journalistic enterprise, I don't like the -- the cut of your jib, the broadcast you -- you did last week, that is covered by our law. And so that -- that is something that is there. There -- and there are also -- you know, there -- it's not just Gmail. It's also WhatsApp. There are messaging functions. Those Official 157 are constitutional applications. And the consequences of my friend's argument is really quite sweeping. My friend seems to think that -- that even a traditional common carrier has a First Amendment right, I guess, to -- to censor anything. I guess that means that Verizon can turn around tomorrow and have a First Amendment right to kick all Democrats or all Republicans off of the -- the platform, and that is -- that would have sweeping consequences that I -- I do not think is supported because Verizon has no message in deplatforming or censoring its users. And that principle is distinct from what my friend from the United States is saying because she's talking about, oh, well, they arrange material on the site in various ways. But that doesn't speak to -- at all to whether they have a constitutional right to censor because just because you have to carry content or carry a particular user, you could still arrange it. And -- and I think that's the fundamental conflation -- conflation that the United States does in its brief. It -- it ignores the distinction between the hosting Official 158 function and the organizational function, and that's something that I think the Court needs to keep separate in its -- in its mind. And I would -- I would commend to the Court Professor Volokh's article cited on page 24 of our brief that -- that makes this distinction. Thank you.
Chief Justice Roberts: Thank you, counsel. The case is submitted. (Whereupon, at 12:27 p.m., the case was submitted.)