Comments on the NetChoice/Moody/Paxton SCOTUS Oral Arguments - Technology & Marketing Law Blog

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In 2021, Florida and Texas enacted “social media censorship” laws. These laws were never serious policy proposals; instead, the legislatures simply wanted to signal to voters that they hated “Big Tech.” The laws assembled a multitude of disparate policy ideas about how the legislatures could “censor” social media platforms. Based on long-standing Supreme Court precedent (the Reno v. ACLU case from 1997), the laws clearly violated the First Amendment in several ways. The main question is: has the Supreme Court’s interpretation of the First Amendment changed in the intervening 27 years? If it has, legislatures can and will enact censorship laws that will completely change how the Internet works.
Today, the Supreme Court heard oral arguments in First Amendment challenges against the Florida and Texas laws. The laws mostly baffled the justices due to the indeterminacy of who the law reaches and which functions are regulated (justices called the laws “sprawling,” “broad,” and “unspecific”). Because the laws are so complex and baroque, the justices aren’t sure if they can decide now that every aspect of the laws are unconstitutionally infirm. It seemed clear from the justices’ questions that at least some parts are, but the justices also struggled with functionalities at the margins (such as ridesharing or email) that may or may not be within the law’s scope. The court’s opinions will surely contain caveats and hypotheticals that will inspire regulators to make further attempts to censor the Internet, even if the court rules decisively for NetChoice on every issue.
Disappointingly, the justices spent very little time engaging with the explanations requirement, but I think that provision is also extremely problematic for reasons I explained in my amicus brief to the court. It’s a sign that the laws were such a hodgepodge of policy ideas that the justices couldn’t fully evaluate every provision of the laws.
Last year, in another Internet Law case, Justice Kagan said that the Supreme Court justices were not “the nine greatest experts on the Internet.” Nevertheless, these non-experts will determine the Internet’s fate. The Supreme Court will be taking more Internet Law cases in the next few years, each of which has the potential to radically reshape the Internet. The odds the current Internet will survive this multi-staged review intact is very low.
A supplemental statement:
It is difficult or impossible to predict what the justices will do. It would not surprise me if there are more than 2 opinions from the 9 justices. Fractured courts do happen in difficult speech cases, such as the Turner case, where no single position garnered a majority of the justices. Both sides finger-pointed at each other for the lack of a more developed record, but without such a record, the justices were vexed by the proper procedural move. I did like what Justice Sotomayor had to say near the end. Something to the effect of: “I have a problem with laws that are so broad that they stifle speech on its face.” If a majority of justices share that sentiment, then they will have to find an appropriate procedural mechanism to make sure that speech-stifling statutes don’t go into effect. To me, the appropriate step would be to impose the preliminary injunctions and let the district courts apply any further guidance when evaluating the permanent injunction.