Courts & Litigation Cybersecurity & Tech

The Lawfare Podcast: The Justices Figure Out that Internet Law Is Hard

Benjamin Wittes, Alan Z. Rozenshtein, Quinta Jurecic, Kyle Langvardt, Jen Patja
Tuesday, February 27, 2024, 8:00 AM
Debriefing the Net Choice oral arguments at the Supreme Court

Published by The Lawfare Institute
in Cooperation With

The Supreme Court heard hours and hours of oral arguments today brought by a trade association called NetChoice against laws restricting content moderation in Florida and Texas. It's the big First Amendment case of the year, and we sat through the whole oral argument.

Lawfare Editor-in-Chief Benjamin Wittes spoke with Lawfare Senior Editors Quinta Jurecic and Alan Rozenshtein, and Kyle Langvardt of the University of Nebraska at Lincoln. They talked about where the justices seem to be leaning on this case, why they think the record is inadequate and underdeveloped, and why they're grumpy about it. They also talked about whether we can predict where they seem to be headed and about why this case that doesn't involve Section 230 seems to involve Section 230.


Click the button below to view a transcript of this podcast. Please note that the transcript was auto-generated and may contain errors.



[Audio Excerpt]

Kyle Langvardt: I think I would have assumed that a really strong majority of the court would have taken the kind of line that Kavanaugh did here. Kavanaugh follows the line of NetChoice. This is all editorial discretion. And it's not only not censorship, if a private company does it, it's actually something like core First Amendment speech. He's really placing a lot of emphasis on this public versus private divide. As far as I can tell, it's basically Roberts and Kavanaugh, and I think that's it.

[Main Podcast]

Benjamin Wittes: I'm Benjamin Wittes, and this is the Lawfare Podcast, February 27th, 2024. The Supreme Court heard hours and hours of oral arguments today, brought by a trade association called NetChoice Against Laws Restricting Content Moderation in Florida and Texas. It's the big First Amendment case of the year and we sat through the whole bleeding oral argument. Joining me shortly thereafter in the Virtual Jungle studio were a very tired Quinta Jurecic, Alan Rozenshtein, and Kyle Langvardt of the University of Nebraska at Lincoln. We talked about where the justices seem to be leaning on this case, why they think the record is inadequate and underdeveloped, and why they're grumpy about it. We talked about whether we can predict where they seem to be headed and we talked about why this case that doesn't involve Section 230 seems to involve Section 230.

It's the Lawfare Podcast, February 27th. The Justices Figure Out That Internet Law is Hard.

I want to start with what these two laws are that required four hours of argument before nine justices who don't think they're the world's great experts on the internet. Today, Alan, we have one from Florida that we argued about first. We have one from Texas that we argued about second. For those for whom NetChoice is not a shorthand for the important First Amendment case of the year before the Supreme Court, what are the Florida and Texas laws and why does anybody care about them?

Alan Rozenshtein: So these are two big sprawling laws with a lot of moving parts. So I'm not going to try to describe each of them in total detail, but I'm just going to highlight what are the most important features of them. So the Texas law is in some senses the most straightforward. Basically, the main thing it does is it prohibits platforms from--and here the vocabulary kind of differs, but basically you can call it moderation if you like what the platforms are doing, you can call it censorship if you don't like what the platforms are doing--but basically it doesn't allow the platforms to moderate based on quote unquote "viewpoint." So in other words, if the platforms are taking down speech on one side of an issue, the platforms have to take down speech on another side of an issue. That's in a nutshell what the Texas law does.

Benjamin Wittes: But hang on a second. Let me just clarify that because isn't all content moderation done on the basis of viewpoint? If I say, "you're not allowed to harass people," then when you engage in some activity that somebody that is harassment in my view as the content moderator, couldn't you just say, "Well my viewpoint is that Kyle is raging crazy person, so I'm telling him that over and over again. Stop censoring."

Alan Rozenshtein: This gets to actually a bigger issue with both of these laws, which is that a lot of the key terms are either not defined or they're very vaguely defined. And this is something I suspect Quinta will get into, these cases are being decided on an interesting procedural posture of facial challenge injunctions. So one of the problems is that we actually don't know what a lot of these, like how a lot of these laws actually would work in practice.

Benjamin Wittes: So we should say it requires viewpoint neutrality in content moderation, whatever that means.

Alan Rozenshtein: Exactly. And I do think there's a pretty good argument that, in fact, things like whether it's kicking people off for active harassment or take spam as another example. I think there's a way of saying, "Well, that's actually not based on viewpoint. That's based on a certain kind of conduct." But you're not wrong that these are the sorts of tricky issues that would have to be litigated in presumably state court as the state court tried to figure out what it is that, let's say, the Florida and Texas legislators meant when they wrote these laws.

Benjamin Wittes: Okay, so no viewpoint discrimination.

Alan Rozenshtein: That's the Texas law kind of in a nutshell. The Florida law is both broader and narrower. It's narrower in that it allows for viewpoint discrimination, but it just requires that constant moderation practices be implemented consistently. Now, again, you're going to ask, "What does 'consistently' mean?" And the answer is we have no idea what it means, but at least in that sense, it's somewhat narrower than the Texas law. On the other hand, it's broader, or one might say more impactful than the Texas law because for two specific categories of users and content. So in particular, politicians and political candidates and speech related to them. That's kind of one category. And the other category is journalists and journalistic enterprises. With respect to those categories, basically no content moderation is allowed whatsoever. Whether or not it's consistent or viewpoint neutral or whatnot.

So those are the kind of marquee features of the laws. Each law also has individualized explanation requirements. So if you are censored or moderated or banned or whatever, the platform has to explain to you why exactly they did that, which is a not inconsiderable requirement, given the volume at which moderation happens. And then the laws also differ in their implementation and enforcement. The Texas law allows for injunctions brought by the AG in Texas. The Florida law actually allows for money damages for violations, which can add up. But I think it's going to [be] most helpful just to focus on the two marquee features, which again in Texas is viewpoint neutrality, and in Florida is consistency plus some special protections for politicians and journalists.

Quinta Jurecic: So I do want to make sure that we touch at least briefly on what was not an issue here, which is both the Texas and Florida law included broad, high-level transparency requirements for platforms that required them to put out big reports about their content moderation practices and rules. And the Court did not take that up here at the urging of the Solicitor General. It set it apart. Those were upheld in both the Fifth and the Eleventh Circuit. NetChoice had been arguing that those were unconstitutional as well under the First Amendment. And there's been a lot of really good work done, by, among other folks Jameel Jaffer and his colleagues at the Knight Institute at Columbia about how if the Court had ruled that that was barred by the First Amendment, that could be a real problem in terms of not only potential tech regulation, but also researcher access to data, right?

So that is not on the table here, it's just these smaller individual requirements. But I do think that it's worth noting if you take these First Amendment arguments to the end of the road, you can end up really limiting not only bad faith regulation, but the most limited of good faith regulation in terms of laws that would allow or require researchers to have some level of access to platform data, which are, I would argue, more important than ever in a period in which platforms are increasingly closing themselves off.

Benjamin Wittes: All right, so the next question, just to set up the conversation, Quinta, is how the heck did we get here? So, there was a lot of complaints from the justices across ideological divides, that the record was not especially well developed and that they kind of didn't know what they were talking about here. And there were kind of pointed comments by some of the advocates blaming each other for the underdeveloped state of the record or the misdeveloped state of the record. What is the procedural posture of this case? And why are we talking about it now with an underdeveloped record?

Quinta Jurecic: Yes, the justices seemed much more interested in the procedural posture than I think we had expected, certainly than I expected. And I believe, if I'm remembering correctly, at one point, one of the advocates said, I believe, "It's not my fault," or something along those lines, in explaining--

Alan Rozenshtein: --always the bad thing to have to say at the Supreme Court.

Quinta Jurecic: Yes. So. The story here, I think, has a lot to do with NetChoice, which is the trade group that has been challenging these laws. So it represents a number of the really big, heavy hitters here, including Meta, Google, I'm not sure if X is in there or not, to be completely honest. But it's the big social media platforms, the platforms you think of when you think social media. And they have really made a name for themselves over the last, I don't know, year and a half, two years, in really always being the first group out of the gate when there is a law that seeks to regulate platforms in some way, shape, or form, whether these laws having to do with content moderation from Texas and Florida, or laws that limit seek to limit children's access to certain services. And in other states they are always there on day one or at least day two with a big press release and a big splashy lawsuit.

Benjamin Wittes: Is it fair to say for the naive listener who, that when you hear the name NetChoice in any kind of litigation, you should just, your working assumption should be, this is big tech when it doesn't want to put the individual company's names on it. So it's like if whatever YouTube and Facebook and Twitter and Etsy have in common, their interests in common, NetChoice's job is to be kind of first out of the gate representing that so that none of the individual companies have to take individual responsibility for the litigation. Is that a fair, or if ungenerous way to put it?

Quinta Jurecic: I think it's ungenerous. It might be fair. I'm actually looking at their members now. It does include X, for the record. It also includes TikTok, Amazon, but also some smaller players. So Etsy, for example, which is, will become important for reasons that we can discuss., Orbitz. But yes, it's sort of the consolidated voice of tech companies, such as they are.

And so the reason that this sort of first-out-of-the-gate approach is important for what we're about to describe in terms of oral arguments, is that it means that Netchoice is challenging these laws before they're actually implemented. And that means that, I believe in all the cases they've brought, certainly these two cases, the Texas and Florida cases, their challenges to the laws are facial as opposed to an as applied challenge, meaning that they're essentially saying, "This is unconstitutional in all circumstances." And that means that we're litigating on the basis of a record that isn't particularly developed, which is particularly sort of naughty in this instance, because the laws are actually so broad to begin with. There's a lot of confusion about, for example, is Etsy even covered by the Florida law? And so that led to a lot of frustration among the justices about how little information they had in terms of how these laws might be implemented, what might be covered. It also led to a lot of confusion about who had the burden of arguing what. So Paul Clement, who's arguing for NetChoice in both cases, was arguing that Florida and Texas had the burden to show that these laws had what's called a term of art, a plainly legitimate sweep. There's another argument about whether or not they had to meet an even higher standard. There's a lot of going back and forth here.

And this was a bit surprising because it hadn't really shown up in the briefing. The briefing, as all of the advocates hastened to point out again and again, had really focused on the question of social media companies, specifically. And at one point, Solicitor General Elizabeth Prelogar essentially said, "It's a little unusual to want to bring in these issues that weren't really before the appeals court, but here we are, and if you want to rule on that basis, you can do so." All of which meant that I think there are a lot of genuine, serious constitutional issues on the merits with these laws that I personally would really like to have some clarity on, but that we spent a lot of time going around and around in circles on the difference between facial versus as applied challenges.

Benjamin Wittes: Well, Quinta has just revealed herself as not a true Supreme Court nerd, because a true Supreme Court nerd would be completely energized by diverting the entire case onto facial versus as applied challenges.

Quinta Jurecic: Yeah, that's not me.

Benjamin Wittes: Okay. Kyle, with all of that as a 12 minute and 50 second prelude, what'd you make of the arguments today, and how would you characterize what happened in them, all four hours of them? And then, when Kyle's done, Alan and Quinta, just pick it up and offer your own thoughts.

Kyle Langvardt: I was also kind of struck by how much time the court wound up dealing with the difficulty that's involved with a facial challenge here and all the complexity of all these different platforms. But really it makes a lot of sense and I think the reason that the Court wound up in this position is that both sides have really litigated this thing in terms of absolutes at the conceptual level. So Paul Clement said at multiple points, "If a private entity controls third party content, then it's called editorial discretion. If a public entity does it, it's called it's called censorship." The Florida SG insisted on framing Florida's content moderation law as a law that just regulated conduct, as a law that didn't really regulate speech. Well, if the whole thing has been litigated in these types of absolutes, and if one of those absolute perspectives is correct, then either the law is completely okay in all applications, whether you're talking about Facebook, whether you're talking about Etsy, whether you're talking about Uber, or it's bad in all applications, even if you're talking about Facebook, even if you're talking about YouTube.

And I don't think at the end of the day the idea that everybody who owns an internet platform is the equivalent of a newspaper editor is all that satisfying. And it's also not all that satisfying to say that all that's going on here is pure conduct. When the Court was trying to find some kind of way out of the options that had been presented to it, I think it was largely dealing with the inadequacy of those two alternatives.

Alan Rozenshtein: Yeah, I think Kyle really hit the nail on the head with his description of many justices' frustrations with these absolutes. My favorite part came, I think, at hour three--by that point, I don't know, time had lost all meaning--where Justice Alito, with kind of trademark Alito frustration, but this time I think extremely well-deserved, said, "Look," and I remember who he was talking to. He said, "Look, I'm just not sure I buy any of these analogies. Clearly, Facebook is not like a newspaper. Clearly, it's not like a Western Union--

Benjamin Wittes: --Parade--

Alan Rozenshtein: --right?" Like none of these analogies work perfectly. And I was just so heartened to hear that. I think shortly after he then asked the advocate, "How much YouTube would weigh as YouTube?"

Quinta Jurecic: If Youtube were a newspaper, how much would it weigh? Which I've spent a little bit thinking about. And I think what it reminds me of is the Noam Chomsky-Carlos Green ideas, like furiously his idea, sentence that is grammatically correct, but means nothing.

Alan Rozenshtein: I will say, it was only the second weirdest moment in the oral argument after, "Sir, this is a Wendy's reference by the Solicitor General of Texas. A particularly weird moment. But I think that's a really important point. I will say, after listening to the fairly rough time I thought that the, I think, SG for Florida had in the first part of the argument, I thought, oh man, this is, gonna be like the, I don't know, Colorado case, right? Like, you just walk in with all your theories and the Court's just gonna be a buzzsaw. But then it became very, very clear that I don't think there's a majority that's going to be particularly eager to swashbucklingly rule in favor of the platforms.

I think that the facial versus as applied issue is going to be a huge sticking point. Now how the Court's going to unwind that is not clear. But I suspect that while I don't think that the states are going to preserve both of their laws in their entirety, and I suspect that some of the marquee provisions might either get struck down or when, if the Court kind of remands this for further development, there's going to be a pretty strong gloss on what that should look like. And I suspect that, for example, things like the Texas viewpoint neutrality on the newsfeed thing, that's probably not going to survive. I think enough of it will survive. And I think in particular there's enough justices off the top of my head, kind of counting noses, I'm thinking Thomas, Alito, Gorsuch, Barrett and Jackson, maybe a couple of more, probably not Roberts and Kavanaugh. They're kind of the most on the NetChoice side. But I think there's going to be actually enough recognition by the Court that just unthinkingly applying the super strong First Amendment protections in cases like Tornillo, which is the newspaper case, or Hurley, which is the Parade case, to the biggest companies in the world, the holders of the public square, I don't think that's going to work. And that, to me, I think, that would be a dramatic holding. It would be a full employment program for Kyle and me, who can inexhaustibly write about this stuff for a living. But I think that's pretty surprising, and to the Court's credit, actually.

Kyle Langvardt: Yeah, I think that's right. A few years ago I think I would have assumed that a really strong majority of the Court would have taken the kind of line that Kavanaugh did here. Kavanaugh follows the line of NetChoice. This is all editorial discretion, and it's not only not censorship, if a private company does it, it's actually something like core First Amendment speech. He's really placing a lot of emphasis on this public versus private divide. As far as I can tell, that's basically Roberts and Kavanaugh. And I think that's it. You were adding up Thomas, Alito, Gorsuch, Barrett, Jackson. But I think Kagan and Sotomayor were also interested in this facial versus as applied issue. And I think once you're talking about facial versus as applied, you're beginning to haggle over who's going to qualify as an editor or a speaker and who isn't.

Quinta Jurecic: Yeah, and I think Justice Gorsuch made this really clear at one point. We don't have a transcript yet, so I'm just looking at my notes, but I believe he, in a question to Solicitor General Prelogar essentially said, "Look, you say in your brief that you don't completely agree on NetChoice, that you think NetChoice errs in some ways in making such a strong First Amendment claim. If you think NetChoice errors, if we agree with you, it's hard to deal with that in a facial challenge." Which is essentially saying explicitly, "We really want to figure out some middle path here and because this is framed as a facial challenge, it's actually incredibly difficult to do so." I was also really struck by how game the justices seem to try to figure out a middle path. There was a question from Justice Ketanji Brown Jackson where I think she explicitly said, "These platforms are private entities, but they're also sort of de facto public--"public forum is a specific term of art here--"but they're a public square. Doesn't that mean that there should be some kind of different way of thinking about this?"

And what the argument actually reminded me of more than anything was oral arguments in Gonzalez v. Google, which had to do with an attempt to hold Google liable for terrorist content by pointing, trying to kind of carve a hole through Section 230 by pointing to algorithmic amplification. And during oral arguments in that case, the justices seemed really conscious of just how difficult and thorny an issue this was that they hadthrust themselves into. And they ended up essentially kicking the can down the road and not addressing that case. And here, there's a bit of a similar dynamic here in that they seem to have taken these cases--there was a circuit split--taken these cases, and then looked at them and said, "Ooh, this is really hard. I don't know if we want to do this right now." But unlike in Gonzalez, where there was somewhat of a record, here, it's really just all at a very, very high level, which makes it tough to weigh in. And they seem to have seized on this issue of the facial challenge as kind of a way to navigate through that.

And there's something to that, but I will say I also found it pretty frustrating at points because it meant that there was a lot of going around in circles about what is the meaning of censorship? There were a lot of bizarre little detours about Section 230, which there may be a preemption issue here with the Texas and Florida laws in 230 that wasn't really briefed. A lot of the interpretations of 230 were just, depended on really shoddy history, which Paul Clement was only too eager to correct. And I think that just points to how this case was at such a high altitude that the justices were just talking about the internet and all of the things that that is associated with.

And one more thing I'll say before I pass it over to Alan. I find it frustrating in part because there is a circuit split here. There's the Eleventh Circuit and the Fifth Circuit disagreed about certain aspects. And at a certain point, if you're the Supreme Court, you can't just sit there and take these cases and say, "Ooh, that's a toughie. I don't know if we want to deal with this one." As with Gonzalez, at a certain point, it starts to look like a pattern. They are going to have to weigh in on this issue. It's not going to go away. It's only going to get more confusing from here as First Amendment doctrine is increasingly in flux, and there's more and more interest in platform regulations. And so they seem to want to kick the can down the road again. And I just don't know how well that's going to serve them as a strategy.

Alan Rozenshtein: So I want to pull on two things that Quinta said. First is this point about how we seem to be getting a redux of the Gonzalez argument, right? Where, "This is really hard. We don't want to deal with it." I find this area really fascinating and I'm glad I study it. I am a bit surprised that not only does the Court seem to find this area fascinating, but this appears to be the hardest set of jurisprudential issues the Court's been dealing with, right? A few weeks ago, we heard a case about the future of democracy, and that seemed orders of magnitude simpler to whether or not a state can pass a law, right, on content moderation. And I think part of it is just--I guess I'm gratified that it's not only my head that hurts when I think about this. Apparently it's the Supreme Court's head that hurts as well.

The other thing I wanted to mention is Quinta mentioned this point that Justice Jackson made, and I think Justice Jackson actually had the best general contributions to this argument, because Justice Jackson was the only one that really was focusing on the actual brass tacks of why we have these doctrines about editorial control and why that's protected under the First Amendment and not. And that is not because we care particularly about the First Amendment interests of these platforms, right? The platforms, of course, are companies, they don't really have First Amendment interests. And even if we're using it as a shorthand for the interests of the people that run them--even I think people like Kavanaugh or Roberts, who are most sympathetic to NetChoice, it's not like they really care about preserving Mark Zuckerberg, right? Or Elon Musk, or what Satya Nadella's First Amendment rights are. It's because everyone is using these First Amendment rights as a shorthand for what really matters, which is the rights of users, listeners, society, the democratic process, and so on.

What was frustrating is how little time was spent actually trying to connect the doctrine, right? And the various buzzwords and formulations and magic talismans, right? It's kind of a standard issue in constitutional, especially doctrinal formalist constitutional law, with those underlying issues. And so in a sense, to me, the argument only really got started after two hours of going around and around in circles, realizing that just citing to what someone said in Tornillo on the one hand, or what someone said in Rumsfeld v. Fair on the other side is not helpful because nothing turns, actually, or nothing non-tautologically or non-question-beggingly turns on whether or not you decide that content moderation is, on the one hand, as NetChoice argues, an exercise in editorial discretion, or as the states argue on the other side, censorious conduct, like non-editorial censorious conduct, right?

And so, to me, I kind of wish, and I sort of understand why the advocates for the states, in particular Florida, didn't just accept that there was a First Amendment interest here and then just argue that the benefits of government regulation outweigh the cost because First Amendment scrutiny is hard. But that meant that a lot of this argument was preparatory to actually talking about what mattered. And so my hope is whatever the Supreme Court does, whether it remands to lower courts, whether this decision is mostly about facial versus as applied stuff, and we're just stuck here three years from now, it's going to at least provide a little bit more guidance to the lower courts on how to not just play with various formulations, but actually decide the substantive question, which is, for the sake of American democracy and American speech, how important is it that we give these companies total leeway versus have the government, whatever the risks of that, have some role in deciding what content moderation is. And I just really wish I'd seen more of that. Alito and Jackson came closest to driving in, but even they, it was a lot of glancing blows on the issue.

Benjamin Wittes: All right. I want to say a few words in defense of kicking cans down roads, which is something that Alex Bickel used to call the passive virtues, and we used to think was something connected to judicial restraint.

Alan Rozenshtein: Did you say used to because he died and he's no longer calling it?

Benjamin Wittes: Well, he wrote a book with, that was one of the chapter titles and it was about the Supreme Court's mechanisms of not deciding issues just because the political system wants them to. And yes, he is dead. Look, we don't like it when the Supreme Court makes big grand decisions. Then we have situations like Dobbs, and we have situations like the disputes over the Voting Rights Act. There are good reasons for the Supreme Court to let political processes play out and not be quick to jump in and interfere with things. And one of the best reasons is because the record is undeveloped and it's actually not good enough to make an informed decision about what you're doing. So I have a lot of sympathy with justices who looked at this and said, "Wait a minute. I can't actually figure out what I'm deciding. And state of Florida and state of Texas and Paul Clement, you guys are trying to make something absolute here that I don't want to accept as absolute, so I want a better record before I decide this quite large question." And so Kyle, I wanted to ask you, and get us started here, assuming there are five votes for the idea that we are not going either/or on this based on this record, what does the decision look like? Like, what does the Court do that kicks the can down the road and says, "We're not deciding this yet. We want a better record." Ultimately though, you have to decide, does this law in Florida, does this law in Texas go into effect? Do you lift the stay or not? So my question is, what does an opinion, a-kicking-the-can-down-the-road opinion actually say?

Kyle Langvardt: It's hard for me to say, but it seemed like what at least I believe Kagan and maybe Barrett we're asking about was whether you could have a decision that upheld the preliminary injunction just with respect to a few of these core platforms while somehow specifying that it didn't apply beyond that scope. But it really is a novel thing and I'm not sure exactly what it would look like. You talk about kicking the can down the road. I think in a way, just by forcing the parties in the court below to reframe the question and develop a better record, that's the kind of can kicking that actually does make some law. There's a little bit of clarity that comes with that kind of decision.

Quinta Jurecic: In this respect, I think Prelogar was really trying to gently show the justices a way to handle this. And as always, she is just astonishingly good and was, I think, arguing, "There are a number of ways that you could do this, but it is an option for you to say, 'We're gonna rule on the aspect that has been fully briefed on the constitutionality, or unconstitutionality, of these laws as they apply to social media platforms specifically, which was how the arguments were fashioned in the lower courts, and then we're going to kick the can on this question of how they apply more broadly, and what that might look like.' And that way, you can kind of split the baby, get the best of both worlds, whatever comparison you want to use." And I will say, I think that certainly, to me, seemed convincing. Maybe that's just because she's a very compelling advocate, but it does seem to address aspects of these laws that strike me as very obviously out of bounds First Amendment-wise, while leaving the door open for applying them a different context or other forms of regulation, which to me, at least, seemed to be a little bit what the justices were nervous about and what Prelagar specifically was arguing is that there is a way to rule here that doesn't take such a strong view of the First Amendment that makes regulation of tech companies completely impossible.

Alan Rozenshtein: Yeah, the only thing that I will add, and this is responsive to Ben's defense of can-kicking is, in general, I'm with you and I think the thing that Kyle and I have been writing about is the hope that the Court does in a sense kick the can down the road by ruling really narrowly. The problem, and here I have some sympathy towards NetChoice. These laws are so broad. They're so vague. And they would have such a titanic impact on social media platforms that what I don't think a state should be able to do is write a super broad law and then say, "It's so broad. It's so vague. We don't actually know what it says. , no one sue us, we'll just implement it over several years. Who the hell knows what will happen. And then once we've destroyed your platform, you can sue." I think that's the problem, and I think that's why in First Amendment doctrine, litigants challenging state actions on First Amendment grounds tend to get more bites, or earlier bites, more permissive biting. I know that's a little weird. They get to do things that other litigants won't because courts are very sensitive to the harms that broadly and vaguely worded potential infringements on the First Amendment can create.

Kyle Langvardt: Yeah, and I'll just add this is an area where it would have been, I think, helpful if there had been more discussion of the downstream impacts on users. Everybody disagrees about how in the abstract you should characterize a platform as a speaker, or a regulator, or a common carrier, or editor, whatever it is. But everybody agrees that these users on the platforms are engaging in speech. And whatever the Court does here is going to have some effect on structuring those users' own speech practices.

There were a couple of moments where I thought counsel actually tried to draw out a little bit of this and the Court didn't follow up so much. One was Clement, during the arguments about the Florida law, said, "If we have to be consistent on account of viewpoint, then the most cost effective thing for us to do is going to be to just remove whole debates. If we have to be viewpoint neutral, but we're allowed to be content-based in our discrimination, well, we'll just discriminate on the basis of subject matter. That's a lot easier than leaving up all the horrible speech."

Alan Rozenshtein: Yeah, the platform will only contain posts about Italian bicycles, which I thought was extremely bizarre. Maybe we're getting a view into a Paul Clements hobby world? And if so, I'd love to hear more from him about Italian bicycles.

Kyle Langvardt: I thought it was a delightful, humanizing moment there. But that and the Wendy's thing. But the Texas SG also raised this point about just taking down more speech as a way to deal with the law. So Kavanaugh asked, "But what do you do with the terrorist speech?" And the Texas Solicitor General said, "This is easy. If you don't want pro al-Qaeda speech, just take down the pro al-Qaeda speech and the anti al-Qaeda speech. Just say, 'We don't want any discussion of al-Qaeda.'" That doesn't seem like a great outcome in First Amendment terms to me. [Inaudible] I would have liked to see the Court explore more of those kind of implementation questions. How does this actually work in practice?

Quinta Jurecic: Yeah, I would second that just briefly. I think that I was really struck by the casualness with which counsel for Texas engaged with those hypotheticals. And this has appeared, I think, throughout the litigation of this case, but there was a point where he said in response to that same question for Kavanaugh, "Oh, well, we don't even have to think about that because of course that's illegal. And so that would be, it would be fine to remove that under our law anyway." And then Kavanaugh pointed out, "What are you talking about? There's a lot of discussion about al-Qaeda that is potentially concerning and as a platform you might want to remove that is not illegal in the slightest." And so there was a level of not understanding that actually some of these decisions are really important, and things that you should want to be removed on the part of Texas, I think less so for Florida, but really in Texas, that I found disturbing, to be honest.

Kyle Langvardt: That was wild.

Alan Rozenshtein: And there's an interesting example, I think, also of, that the justices are getting a lot savvier. I think that's something actually worth pointing out. I don't know if it's a generational thing. I don't think it was. I think the older justices were just as, understood this just as the younger justices did. But I think we're a very long, thankfully, we're many, many years away from, "How do beepers work? What do you mean the signal goes to China first," right? Which I think just generally bodes well for future litigation over new technology.

Benjamin Wittes: All right, so let's talk about one of the things that we were, I recall, I was very struck by, I know Quinta was, and the Gonzalez argument was how apolitical it seemed and how you really couldn't tell what the political orientation of any justice was by their questions. This one seemed a little bit less untouched by political valence. But at the same time, was not especially political. It was not like the conservative judges were lined up behind Texas and Florida and the liberal judges were lined up for Netchoice. In fact, the justices who seemed most behind Netchoice were both Republican appointees, Justice Kavanaugh and Chief Justice Roberts. So Quinta, get us started on this. What did you make of the political valence of the argument to the extent you identify one?

Quinta Jurecic: Yeah, I think I broadly would agree with that framing. I think that it came through most clearly in the questions from Justices Thomas, Alito, and to some extent Justice Gorsuch as well, who were very clearly, in the case of Thomas and Alito, sympathetic to and concerned about claims of quote, unquote, "censorship of conservative speech by platforms," which is what led Texas and Florida to pass these laws in the first place. I think Justice Alito at one point launched into a hypothetical about the speech environment on college campuses, which I think shows a little bit where he's coming from. There's also just specifically the language that they're using is language that is sort of used on the right. So referring to moderation as censorship Thomas seems skeptical of the idea that there could be any good faith content moderation at all. I also think that you saw that, I can't quite recall if Justice Alito touched on this, but Justice Thomas and Justice Gorsuch in the questions that they asked about Section 230, there's one really bewildering question from Justice Gorsuch who asked, I think this is a direct quote, "Isn't Section 230 predicated on the idea that platforms are common carriers?" Which is sort of so inside out and backwards that I can't even--

Kyle Langvardt: --No it's not. It's really not.

Quinta Jurecic: And Paul Clement, I think, gave a very cogent, quick overview of why that is not the case. But those specific arguments about the nature of Section 230 are something that has really come into fashion on the political right in recent years and are not something that you see so much among people who are more to the center and more to the left, and so I felt that that was really the point where it became clear to me what law review articles they were reading, so to speak.

I think I saw less of that from the liberals, although it's possible that I missed something. There was Justice Kagan, who's certainly not partisan by any means, made some comment about platforms wanting to ban anti-vaxxers and insurrectionists, which given the 14th Amendment arguments, did make me smile a little bit. But I think that really the party affiliation came through more on the right there. Is that fair, Kyle and Alan?

Kyle Langvardt: Yeah, I think that's right.

Benjamin Wittes: Alan, what did you think? Did you detect a strong political valence at any point here?

Alan Rozenshtein: I didn't... I mean, sure, but no different than the Gonzalez and Taamneh arguments. It's just, in a sense--and we'll get into this, because we should talk about the weird Section 230 stuff that came in--but in a sense, it's the same argument, right? It's the same issue, which is how should we treat platforms given that they are private, but that they sort of run the public square? And so obviously the doctrine's different, but the sympathies to the platforms among the justices, I think, fall down in pretty predictable ways across these two sets of cases. And I think the most notable thing is just to divide them on the conservatives. So you have what you might call the big business conservatives, right? People like Chief Justice and Kavanaugh, right? Who are not particular culture warriors. And again, I don't mean any of these terms pejoratively, just kind of shorthands. But they're not big culture warriors. They are big believers in traditional good old corporate America and generally are skeptical of state power to the point where Justice Kavanaugh kept trying to define censorship as kind of by stipulation only something a government can do, which I don't think was super convincing, but I get where he's coming from. And then the more-- again, I don't know how else to describe it, even though there's some kind of dismissive overtones--the more culture warrior side of the conservatives, right, specifically people like Alito and Thomas. Again, exactly where Gorsuch and Barrett fit in is a little less clear. Maybe Gorsuch is more with Alito and Thomas and Barrett is like a kind of a floating free agent here.

And then on the liberals, I don't think you have so much a split among the liberals, as each liberal has within them conflicting--they all contain multitudes, right? On the one hand, I think these are all good First Amendment liberals, in that they're all for more speech, and so when someone raises a hey-the-government-is-telling-me-what-to-do challenge, they are, I think, reflexively predisposed to think that there's something there. But these are also liberals, in the sense of disliking First Amendment Lochnerism or the application of First Amendment to big corporations, are very nervous about the use of the First Amendment to go after various civil rights and anti discrimination laws, as in we saw in 303 Creative the last term or the term before. So I think there's a lot of soul-searching within them.

So, again, it's not that I wouldn't say that there isn't political valence to these issues, there definitely is. But, again, it's not the sort of six-three affirmative action or six-three abortion rights that we've seen, which as a law professor is what in part makes this so much fun, because this stuff is extremely not pre-baked until it gets before the Supreme Court, which is nice.

Kyle Langvardt: I think what makes the kind of ideological aspect of this sort of unpredictable is if you were to really back up, if you were to go back to say, like 2010 or something like this, and somebody told you, "Okay, in the future, there may be these laws that try to provide a right of access to privately owned social media platforms or private search platforms." I would think you would assume that those laws would be coming from Democrats rather than Republicans. It feels like a much more natural issue for the left. And at least if you go back to something like 2010, the Roberts-Kavanaugh position would seem like the natural position for the right. You say basically if you're the property owner, you own the infrastructure, then you have this kind of constitutional deregulatory right. And what's really scrambled that is just the kind of culture war politics basically of the Trump years and beyond. So the awkwardness is, I think, just inherent to this issue.

Alan Rozenshtein: And what Kyle's describing is net neutrality. And there was a great moment where, I think this was Prelogar and maybe Kavanaugh, and they're going back and forth, right, about, "But wait a second, Solicitor General. The government is constantly trying to defend net neutrality. Why are you defending that neutrality, but telling us that we should strike down at least some of the parts of the Florida and Texas laws?" And her answer was, "Because they're different." And obviously she said more than that. I don't think it was super convincing what she said. But it does show how these things get flipped extremely oddly, and I think it just reflects, ultimately, that this is the platform's world, we all live in it, which is why the left and the right can both get annoyed with them.

Quinta Jurecic: Right. And I think that also, that little exchange with Prelogar was referencing Kavanaugh, somewhat famously, I guess, dissented from the DC Circuit's ruling upholding net neutrality back when he was on that court. So there's a little kind of time capsule element there.

Benjamin Wittes: One more subject before we wrap. This is not a case about Section 230 and yet you couldn't go 20 minutes in this oral argument without some justice raising a question of Section 230. Alan, how does 230 keep sticking its ugly nose into places where it doesn't belong, and what can we do to get it to shut up?

Alan Rozenshtein: Yeah, so I think Section 30 just might be like a zombie law. You cannot kill it like an invasive weed, it just goes everywhere. So, look, there is an actual--

Benjamin Wittes: The kudzu of American internet law.

Alan Rozenshtein: That's a good law review title. The Kudzu of Section 230. So look, there is a substantive issue here, where the part of Section 230 that no one ever talks about, which is not C1, but C2, which prohibits civil liability for certain kinds of content moderation decisions, that might actually substantively apply, right? If Section 230 doesn't allow platforms to be held civilly liable for certain acts of moderation or censorship, then to the extent that these state laws try to hold companies liable for that, then they are verboten, right? So that's the Section 230 issue.

But that, interestingly, is not the Section 230 issue that the justices, in particular the conservative justices, wanted to talk about. They seem, in an almost gotcha-like way, to try to get Paul Clement and Netchoice to admit, simultaneously, for purposes of Section 230 litigation, the platforms are constantly claiming that they're just passive conduits and therefore they shouldn't be considered publishers. I love what--I'm glad we're recording the video. Just the amount of head shaking right now.

Quinta Jurecic: Kyle and I are both shaking our heads and rolling our eyes.

Alan Rozenshtein: Trying to convince them that for Section 230 purposes, the platforms are saying, "Hey, we're just neutral conduits and therefore not publishers and therefore not liable. But the moment the First Amendment issue comes up, we're suddenly intimately connected with the speech and therefore our First Amendment rights."

Benjamin Wittes: And just to be clear, the reason that that is not a meritorious argument is that the precise purpose of Section 230 and, in fact, the language of it was, you can't treat them as publishers, even if they are in some sense functioning as publishers in certain instances.

Kyle Langvardt: A lot of people pretending to be confused about this, I think.

Alan Rozenshtein: Yeah, exactly. The whole point is, right, there's a constitutional question of what the First Amendment does, and then there's a statutory interpretation question of what Congress did to certain common law liabilities, and at some point Paul Clement, who I have to say was snippier with the justices throughout than I thought was allowed, I think earned his snippiness when he was like, "They're just different things, guys." So I don't know exactly what game Thomas and Alito are playing, but it's annoying. It's an annoying game.

Quinta Jurecic: Yeah. And one more point on that, which I think Clement made snippily was that even if you want to talk about this in terms of First Amendment issues, we have First Amendment law. Here is the example of a a collected anthology, right? If I'm editing an anthology of writings, there's the First Amendment interest of the people who have written the articles in my anthology, and then I also have a First Amendment interest as the editor, and both of those things are in play here. Those are both recognized in First Amendment jurisprudence, and that's not controversial at all. So the idea that the First Amendment could potentially be operating on two levels here in addition to Section 230 should not be hard, and yet as, as you say, it was framed as this like, "Ha ha, you didn't see that coming, did you?"

Benjamin Wittes: All right, speaking of things we didn't see coming. Let's do predictions. Kyle, you get as long as you need to give as precise a prediction about what these nine ciphers are gonna do with this underdeveloped record. As they say in Congress, take such time as the gentleman may require.

Kyle Langvardt: It's probably a good idea to be extremely precise here, right, about my prediction.

Quinta Jurecic: I think you want to be so precise that you bore the hell out of people, so there's no chance they remember your prediction.

Alan Rozenshtein: The map should be exactly as detailed as the territory.

Benjamin Wittes: I just want to assure everybody that nobody's getting this prediction right.

Kyle Langvardt: So I want to be boring and wrong is what I'm going for. Oh, I don't know. I think they'll just kick it down the road. I guess it's still hard for me to imagine these laws actually going into effect with respect to the social platforms. I think the consequences are just really, really unpalatable. And so somehow, I guess I would imagine a majority of the court will try to prevent that from from taking place. But, beyond that, I don't know.

Benjamin Wittes: Quinta. Your highly detailed prediction.

Quinta Jurecic: Yeah look, at one point it became clear that not only do the platforms not know if the Texas law forbids them from picking up stakes and moving out of Texas, Texas doesn't even really know if the Texas law forbids them from moving out of Texas.

Alan Rozenshtein: It was amazing. I just want to say, it was amazing how much the Solicitor Generals for both Texas and Florida had absolutely no idea how either of their laws would work. That was remarkable.

Kyle Langvardt: The record's not developed.

Quinta Jurecic: Right, which just points to just how disruptive these laws will be if they do go into effect. And the justices seemed aware of that. I don't think there were--maybe you could count Thomas and Alito as votes to, maybe Gorsuch, to go back, put these laws into effect as this is hashed out, but I doubt it. So yeah, it'll, they'll be put, they'll be kept on hold in some way. Maybe they'll take the out what Prelogar was suggesting and rule on the laws as they apply to social media platforms and vacate and remand the rest. I truly don't know. I just think they desperately don't want to be holding the hot potato.

Benjamin Wittes: Alan. Your highly detailed and specific prediction. I'm going to make a highly detailed and specific prediction.

Alan Rozenshtein: I'm looking forward to it. Yeah, the problem is I came into this argument thinking this was going to be a really thorny First Amendment issue, and then it was a thorny First Amendment issue, and then an extremely thorny like Federal courts jurisprudence issue and remedies issue. And so I wish we had Steve Vladeck here so he could tell us like, what are the 17 things the Supreme Court can do when crafting the actual judgment? Because that to me is what's so complicated here. At the end of the day, right, and I think I'm in agreement with Kyle and Quinta, I just think it's extremely unlikely that the Court will allow some of the marquee provisions to go in, right? If the answer is, "Well, we'll just take down everything having to do with al-Qaeda," like there's no universe, I think, in which the Supreme Court will allow that. The question is, how do they express that in a way that is limited, but still useful? Do they say, "We're keeping everything on hold, but here are some thoughts for lower courts to consider, here's our sense of what the doctrine is."? Do they say, "Okay, we're gonna divide these statutes into 17 parts just on our own and just sever all sorts of parts of it." That's the part that I don't understand. The only prediction that I can make with 100 percent certainty is that Kyle and I will write at least four to five law review articles about this, just because I think what's clear is that there's not going to be--I recommend people go read Tornillo because it's an interesting case and it's three pages long and it's extremely under-argued. And the reason I point that out is not just to criticize it, but to say it was a simpler and more naive age when the Supreme Court could dispose of issues like that in three or seven or whatever conclusory argued pages. I think what we're seeing now is whatever is going to be is going to be this like miserably fractured opinion that's going to leave a huge, huge amount unanswered, which I think is a win for the states because at the end of the day, right--and what we have not talked about yet is the kind of honestly bad faith that went into a lot of these and sloppy drafting. The states--look, I'm sure there's some good faith behind them, but a lot of it was just wanting to smack the platforms around. And it's the uncertainty. It's the uncertainty that does that the most. And so even if some of the state provisions are struck down, anything less than a complete victory for the platforms is going to be a big loss, actually, in part because of business incentives and in part because of how aggressively NetChoice litigated this. And I really think that the platforms are headed in that sense for a pretty brutal loss.

Benjamin Wittes: All right, as the only person, I think, in the United States who publicly predicted the Gonzalez, Taamneh disposition in detail. I'm going to offer the following prediction here. You are all incorrect. This is going to be resolved as an essentially total victory for the platforms. It will be written by the Chief Justice, and it will include at least six and maybe seven justices, all but Thomas and Alito. Maybe Gorsuch will be in dissent as well, but the reason this will happen is precisely the reasons that you all say it's going to be a mess, which is that it is essentially unthinkable that you could let these laws go into effect. And actually the only easy way to prevent some parts of them from going into effect is to hold that NetChoice is right. And the justices have a particularly playful relationship with Paul Clement, who is one of their most frequent public advocates, and they will throw a lot of spaghetti at him and make him dodge it. But at the end of the day, they are going to for the reasons that you guys all say, it is impossible that the other side can win, the other side won't win. And that is what is gonna happen, and you're all gonna have to come to me and say, "Damn it, Ben, you nailed it again," on my prediction, which nobody will remember unless it turns out to be right.

We are going to leave it there. Kyle Langvardt, Quinta Jurecic, Alan Rozenshtein, thank you all for joining us today.

The Lawfare Podcast is produced in cooperation with the Brookings Institution. Our audio engineer this episode is me, I did it myself. I filmed it. I recorded it. All the errors are mine. All the glory goes to God.

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The Lawfare Podcast is edited by the one, the only, the long-suffering Jen Patja. Our music is performed by Sophia Yan. As always, thanks for listening.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.
Alan Z. Rozenshtein is an Associate Professor of Law at the University of Minnesota Law School, a senior editor at Lawfare, and a term member of the Council on Foreign Relations. Previously, he served as an Attorney Advisor with the Office of Law and Policy in the National Security Division of the U.S. Department of Justice and a Special Assistant United States Attorney in the U.S. Attorney's Office for the District of Maryland.
Quinta Jurecic is a fellow in Governance Studies at the Brookings Institution and a senior editor at Lawfare. She previously served as Lawfare's managing editor and as an editorial writer for the Washington Post.
Kyle Langvardt is an Assistant Professor of Law at the University of Nebraska College of Law and a Faculty Fellow at the Nebraska Governance and Technology Center at the University of Nebraska.
Jen Patja is the editor and producer of the Lawfare Podcast and Rational Security. She currently serves as the Co-Executive Director of Virginia Civics, a nonprofit organization that empowers the next generation of leaders in Virginia by promoting constitutional literacy, critical thinking, and civic engagement. She is the former Deputy Director of the Robert H. Smith Center for the Constitution at James Madison's Montpelier and has been a freelance editor for over 20 years.

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