Transcripts For CSPAN3 Justices 20240704

Mr. Chief justice and may it please the court. Internet platforms today control the way that millns of americans communicate with each otheanwith the world. The platform has achieved that success by marketing emlves as neutral forums for free spch. Now that they host the communications llions of users,fang a very different tune. They now say atthey are in fact editors of eir users speech, rather like a newspaper. They contend that they have a broad first endment right to censor anything theyhost on their site even when inso conflicts their own representi to consumers. The design of the first amdment is to prevent the suppression of speech, not to enable it. That is why they haveno right to use their services as a chokoi to silence those they disfavor. Broay cilitating communication that weighs conduct, not speech and the verizon had the right ncel its favorite subscribers at a whim, that would fail, no less than the claim to censorship failed. Social networking compietoo are in the business of trsmting their users speech. Thr ers are the ones who create and select the ntent on their sites. The atrms in the disavowal responsibility for the conduct in their terms of rvice. They do sort and facilitate the presentation of user speech, but this court ju last term in twitter versus hamana described those tools as little more than sse mechanisms for organizing vast amounts of thirdparty content. They do not have a first amdmt right to apply in a consistent manner and the platform certain users. I welcome your questions. Counsel, uld seem that this case isthe challenge. And toso extent, it relies on the doctrine. But thatses to be an odd fit since our respondent represents virtually all of the platforms and that it would be easy enough to pray platform who is affeedto bring an as applied challenge. Would you comment on that or at least address the factthat this is a facial challenge . Certainly, your honor. I dothk that is a very significant aspect e court. That means the only question for the court is whether that statute has a plainly legitimate sweep. I actually dont understand them, your honor, to be making an over breath challenge, which as i understand what rely on the effects of third parties. As i understand it, they are relying on the effects of their members. They would have tosh various third parties. I think, how would th do that when they had not shn that there is no way that this statute can be applied that is consistent with the constitution. Have they met th . They certainly havenot, your honor. And we think the stute has indeed a plainly legitimate sweep. And, certainly, there are a nuer of the platforms at are open to all commerce and content, much like a traditional common carrier. And just as a traditional common carrr,consistent with the First Amendment, will be subject to hosting requirements, nondiscrimination reirents, so too we think atthe platforms that satisfy that characterization whh e a number of them absolutely would give this statute a plainly legitimate sweep. Can i . This is such an odd case. It seems like your law is covering just about every ci media platform on the internet. And we have the t traditional social media platforms like smart phones and otrstelling them that leaving at this long uld cover them. This is so, so broad. It is covering alst everything. But the one thing i kn about the internet is that its bright he is infinite. So at what point in a challenge like is one does a law become so generalized, so broad, so unspecific, really, that u 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 meaningfully a swath of se that this law could cover but not others. When does the burden shtsto the state . When it writes a law so broad that it is indeterminate. I dont think so, your honor. I still think it is thr burden as a sovereign state legislature to show that the law lacks a plainly letimate sweep. But let me say a rdabout the breath of the law. The legislature did define the term social media platform, which is part of what triggers thapication. But in breath of that definition which would not cover every single website it will cover certailarge websites with subscribers and thli. But the breath of the law apart from that definition is significantly narrowed e fact that the substantive provisions of the law are regulating websites that host usergenerated content. That is what the provisions of the statute apply to. Let me talk about at a. Ts t. That is a marketac i will etsy is a marketplace which tries to be a physical space, which inth area is a little bit crazy. Yes. This is like an online bookstore or online magazine or online newspaper. Online whatever you want to call at. But it is not. Because even though it has infinite spac really doesnt. Because viewers, myself included, or users, cant access the millions of things that are on the ternet and actually get through and pick the things we want. Because there is tomuch information. We are limited by human intentions band and so are they so thathe is very little hard but lets look etsy. Etsy is a supermarket th wants to sell only vintage clothes. And so it is going to and does limit users content. A free marketplace. It is opened toeveryone. But it says to e people who come onto its marketplace, we only want this kind of product. They are going to have to nsor and take people off and do all the in that your law says they cant dowithout all of these conditions. Why at . Why should we be permitting, d der what level of scrutiny ulwe be looking at this broad application ofth law that affects someone where all they want to do is sell particular kind of product, d they have couny standards and they tell you you not curse or ta litics or do whatever. All they want you to do is so your product. But if they are a public marketplace, icthey are they are selling to the bl this law would cover it that is right,your honor. Let me say a word out how the law would apply to atsea. First of all, it would not regulate the goods. What our law regulas the moderation of usergerad content. So it would only apply to etsy to the extent that they and im not sure to at extent it would apply to etsy. But i guess people arusing user generated products. It does not limit what goods etsy can limit its maetplace too. And offers its markets up to the sale of gos and it tells its users please n speak about politics because that is not what our marketplace is ou that is viewpoint discrimination. This llunder a whole lot of your listings and Disclosure Requirements. Why are we imposing that on Something Like this . We, your honor, in robbins, this court held that e ate of california could regulate the speech hosting activity of a Shopping Mall which was sting speech but not inside thstores. We said that they could co but if they go inside the store, we do not say anything th someone could stand on a platform in e ddle of the store and scream out thr political message. We said the common areas where we are permitting others to speak, we are going to let this particular speaker speak anything he or she wants. That is why i am afraid of all of these common law rules that you e ying to analogize to. Well, your hor,i do think that etsy is similaand that it is hosting speech and some expression, and i think th, if anything, makes etsys speech interests even weaker. You began your presentation with talking about concern about the market power and ability of the social di platforms to control what people do. And your response to that going to be exercising the power of the state to control what goes on under social media atrms. And i wonder since we are talkg out the First Amendment whether our first concern should be with the state regulating, what we have called a modern public sqre welcome i think you rtainly should be concerned about that your honor. What i would say is the kind of regulation that the state of flora imposing is one that is familiar to thlaw when you have businesses that ha generally opened thei facilities. This is the way that the traditional common carrier has worked for nturies. If you are an innkeeper and held yourself out as opened to e public, you could indeed be permitted to act in accordance with thatvoluntarily chosen business model. I do think the court shall proceed carefully. But one thing important to keep in mind is there is an poant First Amendment interest precisely in ensuring that large, powerful businesses like that that have undertaken to host massive amounts of speech and havee power to silence those speakers, th state has a First Amendment interest in promoting and ensuring the free disseminio of ideas. Is there any aspect of social med at you think is protected by the firs amendment . Ye ur honor. I can certainly imagine a platform that would be subject to this law at would indeed have First Amendment rights. Me, we point out in our brieth we think if you had an inteetplatform, that indeed had a platformdriven meag democrats. Com, i think that would be a very diffen kind of analysis compared to a company like facebook or youtube who is in thbusiness of just basically trying to get as many eyeballs on their site as possible. But why is it different . You know . When we had the parade case, we said they do not have a lot of rules but they have some rules and e going to respect the rules th ey do have, even thou ey let a lot of people coming. They dont let a few people coming in. And thatses to be quite important to them. And similarly here, facebook, youtube, these are e laws that this law pls to and they have rules about contt. They say, you know, you cannot have hate speech on the site. They say you cannot have misinformation with spt to particular subject matter areas, and they seem to take those rules ansemitic could samaybe they should enforce them even mo an they do t they do seem to take them seriously. They have thousands and thousands of employees devoted to enforcing those rules. So why arent they making contenjuments, not quite as explicit in your hypothic, but definitely makingcontent judgments about the kind of speech they want on the site and e nd of speech that they think is intolerable. Well, there is a lot in there, your honor. Maybe i can start with the early case. I mean, you had a parade maybe just with the marginal question. I am happy for you to talk about hurley. Certainly. The broader question. Rules of the road and alike. Common carriers have always conducted their bunesses, subject to general rules of decorum. I think the fact that the platforms have the nel rules of decorum, the fact mas that upwards of99 , for all that content moderation, they host so much content, t the fact remains that 99 upwards of 99 of what goes the platform goes without review. Yes. Th ve spam filters and the like. That 1 seems to have gotten ople extremely angry. We do not wa tivaxers on our site or we do not want insurrectionist on our site. That is what upsetting. Other people have different ews about what it means to ovide misinformation as to voting and things like that d that is the point. There are some sites thatcan say this kind oftalk about vaccination policyisgood and some people can say it is bad but it is up to the invidual speakers. The fact that some pele are angry about the moderation policy shows it is t their speech. And advertisements. We do not know whether the advertemts think it is their speech or just disagree. And they do not get a hecklers veto on floridas law. But, even more broadly than that, we know the fact that the hosting decision is idlocally charged and causes controversy cannot be the enofthe me. In rumsfeld, certainly the law schools there felt ry strongly that the military were being bigots, and they did not want themoncampus, and get this court did not ok to the ideological controversies surrounding those decisions. Instead, it looked at objectively whether the law schools were engaged in inherently expressive conduct. Well, look, the that the schools were getting money from the feral government and the federal government thought if they are gog to take our money they have to allo military recruiters on the campus. I dont think it has much to do about the issues to date at all. It is difficult for to argue with you about what rumsfeld means but let me just kea crack. Because, i think, as i read ur opinion for thcourt, you do not rely on the funding aspect of the case to reach the conclusion. What was going on there wanot First Amendment protected conduct. The question would be acy regulation of speech as opposed to a funding cond i absolutely think that the is in that case directly speaks to this. Can i ask you about a different president . This picks up on the chf justices earlier comment about governmentinrvention because of the power of the social mea companies. And it seems like in buckley, in 1976, in a really imrtant sense, we said that the concept that the government may restrict the speech some elements of our society in order to enhance a relative voice of others is wholly foreign to the First Amendment. End quote. And that seems to be atyou responded with to the chief justice. And anin torneo, they went on about the p power of newspe and the court said eyrecognize the argument about vast changes that acin a few hands the power toinrm the American People and shape Public Opinion and that it led to abuses of bias and manipulation the court accepted all of that t said it was not good enough to allow some ki of governmentmandated fairness to apply. So how do you deal with those two principles . Sure. First of all, you agree with me on our front line position that what is being regulated is nduct and not speech. I do think that e law advances the First Amendment interests that i mentioned, but i think that inrest the interests that our law is serving that require consideration of those interests are interests do you agree then that if speech is involved in those cases, i mean, they lose . I dont agree with that. The reason i dont agree with that is because the intest that our law serves are gimate, and it is hard because different parts of e law serve different interests, but i thk the one in your coerthat is most directly implicated would be the hosting reirent applicable to journalistic enterprises. One provisioofthe law says that the platformcannot censor or d platform journalistic enterprises based on the content of their publication or broadcast, and that serves in interests very mir to the interests that are recognized in turner when Congress Imposed on Cable Operators a must carry obligation for broadcasters. And just as a broadcaster, what thcot said was there were not just legitimate interests in promoting the free dissemination of ideas through broadcasting, but s indeed a compelling a highly compelnginterest. I think the journalistic enterprise provision serv that and there are other interests that our law rv. For example, the proficiency provision is really a consumer prection measure. The consistency provision, which is really the heart of our law, ju says to the platforms, apply your content consistently. Icies have whatever you want but but if the government applies has a lot to public houses and Printing Presses and movie theaters about what they show . Bookstores . News stance . In other words, be consistent in what kinds of content yo exclude. Could that be done . I dont think so, your honor. Why not . Here, thsocial media platforms, their terms of service, i really part of the terms ich they are offering their service tousers. I dont think that that paradigm really fits in what your honoistalking about. But, look, we certainly agre that a newspaper, or a book in a bookstore, is engaging in inherently expressive conduct, and thes social media platformnot like those. It may depend on exactly what they are doing. I guess the ha part for me is understandg w we apply this analisat the broad level of generality that i inboth sidese to be taking here. I mean, you sawhat is being regulated here is conduct, no speech. Yes. Maybe if we are talkinabout Facebooks Newsfeed feature, but there are lots ofother thing that facebook does. That might be spch but then there are other things that facebook does that does not qualify as eech. So dont we have to drill down more in order to really figure out whether or not things are precd . Actually, i dont think so. That argument strongly favors our position. Because all you need to look at is whether there are atleast some activities. No. No. No. You mentioned the stairce. Excuse me. I mean, we cannot y that law schools as a categorical tt are always engaged in unprotected speech. We look at the particular thing. This was a fair. And the law school said we do not want these certain entities in it. I hear you ggting that we can just say that fabo is a common carrier and therefore everything it does qualifies as conduct and not speech. And i do not think is is really the way we have do this in our past president s. I completely agree with you. It is very important to isolate what each particular ovision of the law is regulating. Nothlaw. The entity. Like we have to dealwith what the law says they cannot and what in particular they are doing. I guess the right level of geneli that is sufficient, i think, to conclude that the law has a plainly legitimate swp we are talking about the social networking companys activities in content moderating user uploaded content. That i think is the relent activity. All right. Wh u do if linkedin has a virtual b fair. And it has some rules about who can be involved. That seems to maon, i think, to the fair case. Is that what you are saying . I dont think so. I do not think it would maon in our case because it sounds like to me and im not totally aware of all the facts i think that is a problem this case. We are not all aware of the facts. Exactly. That is one of the reasons why this facial challenge has been very confusing to defend because we kind of not know what to defend against. Mr. Whaker, we have a bit of a obm because different legal principles apply in different factual circumstances, and there are many different defendants or plaintiffs here. Sorry. And they have different services. So that isa complicating feature on our ci challenge but here is another one for you. What about section 230 which prevents some of this law. How much of it . And how do we account for that mplication in a facial challenge . Why dont you answer the question. Well well, i think that the court shouldaner the questionprented. And how can we do that without looking at 230 . This was briefed t cert stage, your honor. I do not thk that the section 230 preemption question is really going to dispose of the case. You kne District Court actually reached the 230 issue but cod that it still has to reach a constitutional issue anywhere. I will get back to this in my term. Thank you. Judge Clarence Thomas . Mr. Iter, could you give your best explanation at you perceive the speech to be in this case or alleged to be in this case . Well, as i understand their contenonit is that platforms and having content policies are having a welcoming community, i guess. It emthat that level of generality cannotbe a recognizable method. Basically, we want e ople on our sites that we wont. Certainly the prune yard case would have to comeup out the other way because in pruneyard, the mall wanted to eate a certain environment and get this court said they did not have fit amendment right to do that. I think wh i was more interested in is are talking and using broad terms like content moderation. And throughout the briefs, you have shadow banding, e pry torah, and all sorts of things. I i challenges, i always have a problem that we are not t and i guess with these e facial challenges, i always have a problem. Are not dealing wi anything specific. At least not with your interpretation or the states interpretation of th w is in this case. Now, we are just speculating as what the law means. So i am just trying to get some more specificity as to what the eech is in this case they are nsing, as far as i can lland i do not know of any speech interest in censoring other speech. But, perhaps, there is something se i do not think they have certainly a speech interest. At most, they would havesome interest in inherently e conduct of speech. But we do not think they have a message in censorg d the platforming users from the site any more than the law schools in fair had message in booting military recruiters off campus Justice Alito . Where in the rerd should i look to find a listof all the platforms that are coved the statute . I am afraid th does not appear in the record because i think the platfos e fairly cagey about which of their measures they out the statute applied to. It only applied to three platforms within the declaration. Etsyfabook, and youtube. That is part of the problem in th case. Then we dont have a sense of the record has not been fully developed to answer that question so we are kind of litigating in the dark here and this was litigated at break next without the state having a and d to take scery that is why some of thes questions are difficult to swer. As to the platforms that are covered, where in the record what i look to find a list of all of the functions at those platforms perform . I am not aware in the record, your honor, of an all enmpassing list of all the functions that the platform performed. There certainly are three platform spif declarations and also summer general declarations to talk about members more generally. But it is not an all in one place. I apologize, your hor. Does your law cover websites that engage in nonexpressive conduct . I think itdoes cover websites that engage in primarily nonexesve conduct and we would characterize the social networkingplforms in engaging in primarily non expressive conduct. So far as they are hoing speech just like a traditional carrier is not engaged in expressive conducin transmitting the communications of its subscribers, and reducing our law would apply to certainly, at a minimum, the largest social networking platforms. Wh is the right standard for a facial challenge that we think your law implicates a portion or percentage of expressive conduct and a portion of nonexpressive conduct . How should we analyze that . I thk that you would so you would so we ne a numerator and a denonar there, i think. So what would they be . I nthink that the standard would have numerator and a denominator, actually, i think. We would view it is it a plainly legitimate sweep without reviewing applications. The numerator and denominator mpison would be something you would do if there rean over breath claim in this case. En i dont understand my friends to be making an over breath claim but i cannot fi the word over breath in the pleadings. In the footnotes, in the te case, there was a over breath. Juice kagan . I want to understand your narrative. To the newsfeed postings, facebook, twitter x. So suppose that i y take this as given. You can argue with the fa that dont. Suppose thati y for the most part, all these places say we are open for busine, post whatever you like, and we will post it. But there are exceptions to that. And clearly contentbad exceptions which they take seriously. So they say, dare we think, that minfmation of particular times is extremely damaging to society. Misinformation about voting. Misinformation about certain Public Health issues. And so too we think hate speech or bullying is extremely problematic so we are going to enforcrus against us. They are only going to apply to a small percentage of the things that people want t post. For the most part, they are open for business. T are serious about those contentbased reriions. All right . So in that world, why isnt that a classic First Amendment violation for the state to come in and say we are not going to allow you to enforce those sos restrictions, even though, you know, it is basically li editorial judgment. You are excluding particular kinds of speech. Well, your honor, i take your hypothetical assuming it isfit amendment activity. I think what you would do in that instance is run intermediate scrutiny under connor. Dont say what i take it to be. Do you take it to be First Amendment activity . No. No that is our whole point. Even though th are saying, we are a big forufor lots of messages but not for ose kinds of messages. We want to exclude those kinds of messages. Why isnt that a First Amendment judgment . The court held otherwise, i think, ane yard because linen, and the small honor did not hay expressive use. I am taking it a given that the youtube or ok or whatever has expressive use. Ere are particular kinds of expression defined by content that they dont want anywhere near their site. But you would still have to look at the objective activity being regulated. Namely, censoring andy platforming. And because they postsomuch content, an objective observer is t ing to readily attribute any particular piece of content that appears on their site to some decision to either refrain from part the platform. This is a real world example. Twitter users. When they woke up and un themselves to be x users and thcoent rules had changed in their feeds changed, and al of a sudden they were getting a different online newspaper so to speak indifferent metaphorical sense every morning. D a lot of twitter users thought that was great d a lot of twitter users thought that wahoible because, in fact, there were different content judgmentbeing made that was very much affecting the speech environment that they entered every time they open their app. Your honor, that respectfully does t answer whether they have a message in their censorship any more than i am repeople objected quite strenuously to the fact that the w schools were permitted to interview on campus. I am sure people wanted to band leafleting in the mall in pruneyard, and th es not give them a message and i think the reason for that is, if they are not carefully selecting the content in the newspaper they dont have a message in existence or near existence of the content. Thank you. I just wanted to give you a chance to finish up on the section 230 point. I think it is sectn 6 of your law that says the law is t enforceable to the extent it conflicts with section 230. Sure. Sure. So why wouldnt we want to alically address that early on in these procdis whether in this quarter the lower court . Sure, your honor. And i think the reason is, is because the law is not facially preemptive under 230 c 2. We understand 230 c 2. And there is a very nicepoint in the journal of speech law. The second point i wod make about sectn 230 c 2 is that it only apieto goodfaith content moderation. So to thexnt that our law prohibits them fr gaging in bad faith moderation, that is absolutely not preempted by 230 c 2. And one way to understand thr constitutional claims in this case because they have a expansive view is they have a constitutional right to engage in d ith content moderation because they already have the right to engage in a lot of content under 230 c 2 as ng as they do so in good fah. And just a followup on Justice Kagans line of questioning. You have analyze lecarriers and telegraphs in particular. Why is th an app analogy he . I think it is because the principal function of a social media site is to enable communication. It is enabling willing speakers and willing listeners to talk toach other. And it is true that the posts are more public, but i do not think that rizon would gain any greater right to ns just because it was a conference call. I do not think that u. P. S. Or fedex will gain a greater right to censor books because it waa truckload of books as opposed to e book. So there has been talk of market power. Market power is not thing i think of for a common carrier. And cell phone providers operate in a fairly competitive market. Thank you. Justice kavanaugh, in your opening remarks, yosa the design of the First Amendment is to prevent the suppssn of speech and you left out what i understand to be three keor in the First Amendment or to describe the First Amendment, by the government. Doyou agree by the government is atthe target is . I do, but i think there is no interest in allowing the peoples representative to allow the Free Exchange of ideas. This court has recognized that as a legitimate interest the turner case and going all the way back to the associated escase. The intervention the court emphasized unrelated to the suppression of spchthe antitrust type intervention the. So i am not sure when it is related to ensuring relative voesare balanced out where there is fairness in the speech or balance in the speech that that vered by turner. Do you agree with that . No. I do not agree, your no what does turner mean as opposed to speech . We do not view our interest asreted to the suppression of speech. We thk of protecting journast enterprises being censored. Msnbc being censored. Because it is preventing him from insilenced. It is not an equalizing interest. On the editorial control point, u ally want to fight the idea and i understand that editorial control is th same thing as speech self. But we have a whole another line of cases, as you are aware of course, hurley, pg e, turner, which emphasizes editorial controbeg fundamentally protected by the First Amendment, d derstood the line tobe whether you are involved Speech Communications business as opposed to a shopping cent owner, which is the other side of the line. Can you respond to those cas . Sure. I do not dispute thgeneral principle of editorial control, bui do not think the social mea atforms are engaged in editorial control. Anthe disputers are good they were against editorial control when they booted them off campus. And this court had none of it. So the court does need to draw line i think between a selective speech host that is exercingeditorial control and they speech host like a common carrier or the mall in pruneyard that can indeed be regulated in being prevented omsilencing its customers. On the selective speech ho point, i think you made the point to Justice Kagan that they did not eliminate much spch, but didnt we deal with that in hurleyaswell . The mere fact that the organizer took almost all comers was irrelevant to the fit amendment edorial control or who participated in it. I guess i think, hurley, your honor, turned more on the back of theactivity for the st. Paics day parade for the particular and specific purpose, perhaps, it ulbe expressed and be a little more lenient, but i will note that this courin hurley rejected the conduit argument, relied on the fa at there was front end selection of the members the frame, and the parade and committee responsible for it s doing this for the election. I inearly, that its our theory for hurley. I think productivity is totally irrelevant to who is the speake being knowledge in our brief to the governme eech cases. This government made that exact point in a variety of cases such aswi all vs. Cam and trippier. Atyou said, if the government is no exercising a n of control for the speech that comes into a quorum, it is not speaking, it cant censor. That is what this court held. Thank you. Justin perritt . I have a quti about the editorial control. Whenitcomes to platforms that are the traditional social media platforms like youtube, instagram, tiktok, twitter mike x, it is all itorial control. It seems to me that e distinction between this and fair ishe, these companies are speech host a lot are sting job fairs for this purpose, onne recruiting. They want gathering together peleand saying, present your ideas. These social Media Companies are hoing speech. So, why isnt that more li newspaper . It is different, your honor, but i think thats why we have leaned on also the common carrier anog it reflects that a speech you can just say, it is a speech host and go home. If that were tr, verizon put aside commentary for e second. Pretend, commentary to the side, tell me why this doesnt look like the same kind of editorial we see with newspaper sectors. Because the platforms do not review it is a strange kind of editor, your honor, that does t tually look at the mari that is going on as compilation. Itter vs. , no, the platform told you atthey didnt even know that isis was on their platform and doing things. It is a strange kind of enter that does not even know that the material that it is editing. Is that because it is not humaze it is human eyes that is humanized. Is it because it can be an algorithm that can say, we want to have terms of service, we nt this kind of site, or some say, for example,tiok might have boosted protopalestinian speech and reduced for israel speech. Thats a viewpoint. Right . If you ha algorithm do it ats not speech . It might be, your honor, t again, in twitter and gonzales, the platforms told you that the algorithms were meant to organize neutral methods of organizing speech, much like the dewey decimal system. Thats not wh theyre saying here. Lets assume what eye saying here, theyre organizing it ys that reflect preferences, that are expressive of their terms and condio. In that event, do you think you would be editorial controina First Amendment sense . No. Think its important is a pretty organing i agree with justice jackson, e separaonof the various functions. Thornizing function for the hosting function this is the four that professor bolick has dein his article that we cite. Me, simply because they are required to stcertain speech , atis not actually meaningfully represent them fo organizing that speech. I ink the court has to separate out gution of the organization from simply prenng them from censoring. The reason, your honor, it is different from the newspaper, i thin o principal points. First, we talked a lot abou selection. The second, space constraints e something that this court, in fair and in 20 oh relied on as faor thats relevant. The social Media Companies dont have any special constraint, which ana requirement of those, additional pieces of content let me stop you there. They pointed out, even thgh there may not be physical space constraints, theres the space of attention. Right . They have to present information to a consumer in someso of organized way, and theres a limited enghof information for the consumer to absorb it. Dont all methods of organizaonreflect some kind of judgment . Could u tell, caflorida enact a law telling bookstores that they have to put everything out by alphabetical order, and that they cant organizer put something closer to the front of the store, you know, that they think their customers will want to buy . First, let me kea step back. What are the prle here is we dont have any informatn for these are rhythms. It is very diict for us to pick apart what exactlthe algorithms are doing. You certainly cod agine, i think, if you can, an other them of the algorithms thatcould be representative. If the t rhythm works in this way as it does with twitter vs. Kavanaugh, they look moreli always to reflect user choice. I nt think theres expression in that. Yocaimagine a different kind of out of rhhman office a possible algorithm to make a website like a newspe that would be different. Again, i think the question of organization is and will be analytically distinct for the institution. Yo gument that its not expressive entirely depend on the hypothesis that the sorting and speed functionsare solely some sort of neraalgorithm designed to user preference, d at they reflect no kind of policy judgme sed on the platform itself . T all, actually, your honor. I thinth preventing this festering is not meaningfully ecluding them from organizing. If theyre reired to carry a piece of content, eycan organize it however they want, generally. There are provisions on shadow ndg and the like, but they can generally orgazean over the they want. The prohibioof censorship and the platforming is not a meaningful interference with organizing, but ai on algorithms, i would stress that thisisa facial challenge. We dont have any particular information on what exactly theyre at the content of the algorims i think the only question there is whether is a possible state of the world which the out of rhythm are not expressive. Let me ask you unless question about the facial challenge aspect is. So, floridas law, so far as i can understand it, is very broa we were talking about classic social media platfos,but it looks to me like it to ver uber, looks to me like it to cover Google Search engines and weservice. All those things would look verydierent. You know, Justice Sotomayor ought up pepsi. Seems like there is a fee recommended for you, but it also has shots for ndde goods you can get wi a lot morelike, brickandmortar marketplace or fleamarket you know a place r hosting okay. If this is a facial challenge, and floridas law, indeed, is broad enough to cor a lot of this conduct, which isfarther away from oppression than the standard social media platforms, why dn you, then, in your brf,kind of defendant by pointing out, look, theres all this other stf desperately fine that florida covers . We dont want, you know, some person who wants to sell their goods to be suppressed on etsy because hama goods express a political. We can defend the application of our law for etsy. I think i fended that for the elecrs i dont think you need to i mean, pointing out, i ca sit here and think of all kinds of applications of this law that really wouldnthi expressions, but i didnt understand you two have been defending the law in that way, as opposed to countering the argumentth the platforms are not engaged in the expression. Were making both arguments, your honor, to be clr. As i was discussing with stice sotomayor, we view etsy as not having a significant expressive issue, and applying its content moderation policies. Is that enough to make the whole thing fail is question. Yet. If we would agree with you that etsy is fine for it to apply to uber , you know, amazon web services. If we agreed with you for all that, is that enough to say, facial challenge cant . Yes. That would give the law a plain, legitimate sweep. Thats what you need to project a facial challenge. Thank you. Juste ckson . I feel like theres a lot indeterminacy in this set of facts and in this circumstance. As Justice Alito tried to eliminate with his questions. Were not quitsu what it covers or not clear extlhow these platforms work. One of the things i wanted to give you a an to address is the lack of claritabout what the statute necessilmeans. You have talked about the consistency provision, for example, and you have reprend what you think it means, but we dont have a state Court Determination interpreting thatovision, do we . You do not, your honor. In fact, the lawas not allowed to go into effe and the courts are not have an opportunity to construe this at all. I think that counts strongly in favor of otting the facial challenging. This urhas considered the Washington State grange case, the fact that the state courts havent had an opportunity to construe the state law being attackedasa reason to reject. Can i ask you, do u think this statute could be susceptible to multiple interpretations . I can imagine ev e consistency program, what does it mean that th have to do this consistently . They have to apply the same standards, into have subsequent results, the same level of preference . I can imagine you can interpret th both more narrowly or broadly. To be some interpretive questions, urhonor. On that point, i dont think theres any ambiguity. With the consistency provision saying, the social media platform must apply censorship d platforminanshadow bending standards ina consistent manner among to use for the platform. The censorship d platformin and shadow bending standards are things of the social media compy st, under a separate provision of the law, publicly disclose for the closure requirement. I understand and appreciate the floridla it is perfectly clear. I think that language i read to you, i think, makes clear that the sene comparison is not some abstract notion of fairness. Let me ask you this abou the act. Letters, get to the point ere we disagree with you about whether or not expressive activity is covered, and were actually applying or tried to deteinwhich standard applies. That is, you know, levels. What i am a little confused ouis how we evaluate, for example, the 30y striction with respect to determining whether ornoit is content based or content neutral. I appreciate that, you know, it doesnt point to a paicar kind of content, but i ppose it implies in referee to content. That restriction is a regulated entity that can only change its rules of tes and engagement once every 30days, but we would have to look at what s fore and what it is now to derme if theres a change. That a contentbased restriction or not . Certainly not. This court held a couple of terms ago in the city of austins case, srbely because every galatian requires consideration of content doesnt make it contentbased. Thing on the face of that provision to rg any particular message of the platforms, and i in just to zoom out a little bit on the 30 day provision, that provision is released adjunct to the consistency provision, as i understand , d the point of it is, it wouldnt domuch good for the policies to be applied consistently in terms of if you cannot constantly change them. I understand. But is the application of even thconsistency provision to determe ether theyre not ing it consistently, arent we also looking at content some extent . I think its not necessarily as easy as it might seem to determine whether or not ese provisions are actually conten based or not. I dont think the fact that it requires consideration of ntt makes it contentbased. I think you have to okat whether it is targeting some kind of message of the platform. Theres nothing on the face of the 30 havent a provision that that. Thank you. Thank you, counsel. Mr. Clement . Mr. Chief justice, may it plea e court, florida no effort to level the Playing Field and fight the perceived bias of g tech violates the First Amendment several times over. It interfer th neutral discretion, compels speech, discriminate on the basis of content, speaker, and viewpoint. It does all of this inthe name of promoting free speech, bu loses sight of the first principle of the First Amendment, which is it only plsto state action. Florida fes its law as you have heard this rning principally by insisting there is no aggressive activity being regulated. Th is reality. This statute defines the targeted websites, in part, by how big the audience. It regulas e content and display of a particular website, and it is apprised prevent my client from censoring speakers and content. If you are teing the website that they cant censor speakers, you cant turn around, so you are no regulating expressive activity. Its all ov this law. That brings us squarely within the teaching of pg e, hurley, and rnillo. All three reject consideration of thmaet power, mittribution, or space constraintsand reno and 303 creative keclear those principles are fully applicable onthe internet. Indeed, given the vast amount of material on the internet in general and on these websites in partul, exercising editorial discretion is absolutely necessary to make the websitesusul for users and advertisers, and the closer you look at flidlaw, the more problematic the First Amendment problem becomes. It singles out particular websites i plain violatioof minneapolis bowl, gives preferences to political candidates, and journalis, enterprises, contentbased streams. I welcomeit. Mr. Clement, if the government d what your clients are dog, would that be government speech . So, it might begovernment speech, but i think it wod be unconstitutional government speechwhh is to say, obviously, if the government speech cases but what the government whos inis exercising editorial discretion tocensor some viewers or some speakers and not others. Ithk that plainly violates the First Amendment. I think thats essentially the thrust of this courts decision in the nhtan Community Cable case against howard, which is in this area, looking for state action isabsolutely critical. There are things that the government does, a First Amendment problem, and if a private speaker does a, we recognize that as protected activity. Limit can yogive me when example of a case in which we have said, the First Amendment protects the right to censor . I dont know that the cot used that particular locution, justice thomas, but i think that is the thrust of hurley, that is the thrust of pg e, that is ththrust of tornillo. In all of those cases, a private party did not want to convey ordieminate the speech of a thirdrt, and in every case, the government said, no, we have some really good reason here why this private party has to diemate the message of the thirdparty. I have been unfortunate to have been here for most of the development of the internet. And on the argument under section 230, which has been you are melya conduit, which is the case from the 90s, perhaps the early 2000s. Now, you are sang yoare engaged ineditorial content, but does nothing to undermine your seio230 document . With respect to justice thasyou are here for all of the. I wasnt here for all of the. My understanding is that my client had consistently tan the position that they are t mere conduits, and ngss in passing section 230 look at mecommon law cases and basically said, if you arjust a pure conduit, that means you are free from liability, but if you start becoming a publisher by keeping bad conduct out, then u longer have that commonlaw liability reduction, and as i understand 230, the whole whkeisland was to encourage websites and other gur parties to, essentially, exercise sction and keep some of that bad stuff out of there. As a result, congress had, they didn y, you are still a conduit if you do that. It is that you should be treated as a publisher because congre cognized that when my clients were dog would, in another context, look like publishing, which would come with the kind of traditional defamationliility, and they wanted to protect them against that precisely to encourage them to ta down some of the bad material that, if these laws going to affect, they would be to say on the websites. Can i ask yoabout the facial nature of this . My understanding is that, to strike downth statute is basically unconstitutional, we uld have to conclude that theres no possible way for this law to govern these entiti d their conduct. First, do i have the standard right . With all due respect, i dont think so. In the context, as my iends can indicated, the question is whether or not the statute has claimed a gimate sweep. Its not the salerno, if theres one little application somewhere, thats enough to save the statute. But whose burden is at . I thought it was your burden say that this statute, in a multiple of its application, or jesus is a substantial application, that would be there. Two things, your honor. First, doesnt have a plainly legitimate sweep. In fact, opposition of his we made this arme below and succeeded this statute has no constitutional application. Part of that is cause none of the statute it was not the part in front of you today applies unless you are a covered website. Wait. I dont understand. I am sorry. So, no application, but we have so many different applications of the law inthis situation precisely because it is so broad. So, how to use . Because the statute only applies to websites that are a handful of websites that made the viewership thresh the total sales threshold, you knd is not our only argument, honestly, but wonder arguments is you cant regulate sive activity in the kind of entity. Yeah websites would only does florida law coverage email . The florida law i think by its terms, could coverage email. All ght. So, does gmail have a First Amendment right to delete, lets say, Tucker Carlson or Rachel Maddows email accounts if they dont agree with her, or his or her viewpoints . They might be able to do that, your honor. Thats honestly not something that has been the square focus of this lititi, but lower courts well, if theydont, how are we going to judge ether this law satisfies the requirements of either salerno or brett . Again, i think it is the plainly legitimate sweep st not synonymous with over brett, but since this statute applies to gmail, if it applies at all because it is a part of google, whh qualifies for the threshold and it est apply to competing email services that provide identical services, that, alone, is enough to make every apication of this st uncommon. How can that be, mr. Clement . Its not unconstitutional on the bas of bigness. Right . It is when youre regulating expensive activity. That is what this court said in the star. The statute in minneapolis star was cotitutional in all its application. You are saying, if there were no issue here, th this is really sub refute, they will try get out a certain kind of Media Company that, because of their views, and the only issue was its not worth it to regulate a lot of small sites. You know, we only want to go after the big sites that tuly have many millions of users. You think at a First Amendment violation . I do, the way you are suggesting this question is that it is a harder case in the one before you . I think it is a little bit of an impossible case to say, you can go after big openings undethFirst Amendment. All you have to do go after all the social website social media websites all e websites you dont need to throw around ticial distinctions. Just so instantly have to coincide with the website you think of a bias that you are trying to correct her ju to remind you of i took that out of the question. Tsay that they werent going after these companies because of bi or because they thought they had a slight, you know, are just going after the biggest companies, because those are the companies with the biggest impactinthe most number of user. How could that be a First Amendment violation . Because minneapolis starts as it is, because arkansas writers projectsasit is, because if you actually got to analyzing the socalled zimmer protection inres, the Consumer Protection interests would be exactly thsa for website with 99 miio mole users as it would be with a website with 100 million global users i inthe red flags for overalthe distention in the stute, then if you look at the statute more closely, my goodssthe political candidates provision says, you can have posts about a political candidate. I cant imagine an more obviously contentbased than that. Thats unconstitutional in every one of its applications. Is there any aspect of the Service Provided on the social platforms that is not protected under the First Amendment, or that is plainly valid under the First Amendment . Think it is all protected by the First Amendment. Direct messages . I think rect messages are protected under the First Amendment. I think the courts have looked at things like whether gmail is a common carrier than actual held with a case involving the rnc with specific holding for aiis not a common carrier. I think much the logic of that would apply to direct messaging. Obviously, if this werea statute that tried to address my client only to the extent that they operated the job board, this would be a lot closer to their, and i might haharder case. The government says your brief sometimes errors. It is suggesting that conduit activity is always expressive, and direct messages, gmail. I take it your view, then, is that providers can discriminate on the basis, clinical views, religious beliefs, maybev race . Justice gorsuch, you need to determine between a status based dissemination and the other is status in i dont think that our clients could discriminate and say, you cant be on our serve or even get access to our service onthe basis. And how to e it and their speech. , e ntent of their speech does it have to do with religion, policsor race . Yocan editorialize and use th itorial power to suppress that speech. Right . I think that gets to a very hard question. I think it would be speech the answer is, yes, we can delete emails, we can delete direct messages. We dont agree with it based on politics, religion, race. Obably not an application, but i think that the bookstore, if he wants to display this ntto celebrate black history, candaele, that display just the African American authors . I think the aneris probably yes. So it is here too. I think the answer is that ers at least First Amendment activity going on there, and then he would apply the produconclose to it and would decide whether or no that is permissible or not. Viously, though, i think this ca involves editorial decisis atits heart, and wanting i want tomake clear on the faal challenge point you understand how this case me to be, as you heard toda the principal argument is this doesnt cover expressive activity and all, and in the lower court, when we w the pulmonary ncon, they put all eieggs in that basket. He specifically sa, ok, we dont want to do intermediate scrutiny at the pulmonary injunction stage. We are only having an argument to resist this pulmonary injunction if you hold that this is not a passive activity, d he did the same thing in thelected circuit. We have a footnote in our brief making clear on the pages exactly where they did this. They basically said, we either threshold question that this is not expensive activi we dont want to get into the st of it at this point. Well have some discovery, and well have the preliminary injunction added. The florida law applies, and its definition would seem to apply. You have told us that its okay for your clients to discriminate on e basis of viewpoint in the ovion of ml services, or in allowing direct messages from one Facebook User to another on the private facility. W about ubers community on the basis of a viewpoint with respect to people that stve would pick up . I ink the way that i dont think thats okay. I dont think uber is interested in doi at. Just make clear, the ate would pllike the comments on the drivers or comments section or Something Like that if ub nts and i think it e same way for etsy. Etsy has an ability to the mments on the seller and whether they did a nice job or a bad job , and etsy doesnt want certain ti comments on that. They cleaned that up keep it to be a better place for people to come , look and marials. So, when you think about the applications of this statute to some of the things th seem less obvious, its really cud on that expressive aspect of. Obviously, the core of the statut d the motivationfor the legislation, and examples that my friends from florida including thr n petition appendix are about much more extensive activities by the youtand the facebooks of the world, excluding certain speakers, and they want to override the c editorial decision. One of things is rdfor me about this case, lets say,i agree with you about facebook and youtube, social media platforms. Dont we have to answer the questions Justice Alito has out uber d more . Well have a lot of briefing on th sprawling statute. It makes me nervous. Inosure i agree with you about dms and gmail. Its not obvious to me, anyway, that they cant qualify as common carriers. I agree. Dont want to dedeon that today, but this is not here on final judgment. It is here on preliminary injunction, and the question is, you ow, do you want this law with all of these unconstitutional applatns enforced by every floridian these provisions e enforced by every floridian bring up to go to court and get. Or10000 in civil penalties. Do you nt that completely anthetical onto the First Amendment to go into effect . While we sort out all these anterior questions . Or do you want itto be put on hold ilwe can litigate all this stuff, and it rns out theres a couple of applications that are okay, or somebody wants a briefing on the question of whether or not direct mail is a common carrier . Is th in this foster . Absolutely, it a mistake, you can from this preliminar injunction in place. If you want to, yocan point to the clear litigation judgment that florida especially made below, which is were not going to get into all that intermediate scrutiny stuff. We dont want a cord on that. Were going to put alour eggs in the space of activity basket, and it cannot have been more clear about the below and in the 11th circuit. Then, say, this law that has all of his First Amendment albums, this wolf comes as a wolf, we will put that on hold, then we can sort out some of these. If that is the se, mr. Clement, what extent is it th result of your own litigation cions . You could have brought and applied a challenge mid to the two platforms you want to talk about, facebook and youtube, but ineayou brought a cial challenge, and you claim that its also susceptible analysis. So, to t preliminary injunction, you had to show you anna ability of success on yo facial or overall challenge. And we did. You cant now shift and say, it was a good luminary injunconbecause it is fine as applied to platforms i want to talk about, and lets forget about all the other platform that might be covered. Justice alit first of all, we did all that d won. How did you bring it a supply challenge . No, because we think this statute is unconstitutional in all its applications. Exactly. So, he suggested it could be sorted out on demand, but on the mend, it is still a facial challenge. It is still a facial challenge. You are right. Again, you think all the applications are unconstitutional. I do, because definion are problematic. Then is done. If you should prevail in this on a preliminary injunction here, for practical purposes, it is finished. So, s no opportunity to sort out anything on rema theres the whole merits. We have shown is a likelihood of success on the merits. We havent gone on merit. All or nothing. Can i y it another way . I asked you befo what was the standard for now, youresang that you think all applications are unconstitutional, which i thk your burden establish. If we come up with some scenarios in this context in which we can envision it not being unconstitutional, why dont you se first of all, thats not the standard, with all due respec this court has never applied the salerno standard in a First Amendment case. This would be the worst first amdmt case in this courts history to start on th road. You can always put in some provision into a statute thats innoouand say, theres a couple of findings in there. Look at it sectionbysection, these sections are pernicious from a First Amendment standard. You can have content about a political candidate. There is no constitutional apion about that. Peeke, counsel purchase i understand precisely, your position is the only issue before us is whether or not the speech that is gulated qualifies as a lip is not to be the question the expression thats befe not speech . I think thats eway to put it. Obviously, you have o questions presented. Youre going to be able to decide whatever you think fairly included in those quesonpresented. Im just pointing out that, as anartifact of the way my friends litigad is case, you do not have a record on everything that might be interestinfointermediate scrutiny, and its not my faul it is based precisely on their representations to the court below, and he did not want to get into the intermia scrutiny thing. They wanted to tee up the rutiny thing. The appropriate selection is not salerno. Would you articulate the appropriate standard . I think the puppy standard is whetheornot the First Amendment has a plainly legitimate sweep. Thank you. Agai d you explain to me why, you went here, it does not present a section 230 obm for you . If we win here, we avd section 230 problems, i think, yo honor, and the reason is the 230 is protection against liability. Its a ottion against liability, because congress wanted us to ere as publishers. And so, he wanted usto exercise editorial discretion. So, it give usliability protection. Liability protection and First Amendment status dont go hand inhand, i nthink the parade organizer in hurley was responsible for the pade floats that go into its parade. Historical, w stands and others are responsible for the materials. So, i dont think u ve to sort of, say, its one e other. A 230 action stands the law. So, what isit that you are editing out that fits under section 230 . In some these it depends. Some cases, it is terrorist material. Another kits, kids telling other kids, you should do this tide pods challenge. In some cases, its kids that are encouragg other kids to commit suicide. Therea ole bunch of stuff that we think is offensive within the terms of 230 th were exercising our editorl discretion. 230 does not necessarily touch on offensive material. It touches on obscene, lascivious, filthy, excessively violent, harassing or otherwise objectionable. The last one . Well n have a fine debate about the last how much of that u know, whats the la for the company to keep and all that. We have that fine deba in some other case, but we ul certainly take the position that we e predicting that. I think you can make that doctrine do a lot of workbut lets put that aside. Te me, again, exactly what the expressive conduct is that, foexample, youtube engages in. Im sorry, twitter d platforms someone. What is the expressive conduct, and to whom is being communicated . You know, lets say, when the d platforms, adfor violating the terms of use or for continuing to post material that violates the terms of use, then they arent nding a message to that person and a broader audience. How do you know someone has been d platforms . Is there a notice . Typically, you get a notice of that and theres provision. I mean, the audience, e other people. Theyre going to see that theyre no longer there. Yowould want them to be there anor theyre tired of it. Heres the thing. That message will then be carrd er. This isnt just about who gets exsed from the platform. Its all about what material people see on their invidualized when they tap into their facebook, twitter, or youtube, d what theyre not going to see istheyre not going to se w your that violates the terms of use, theyre not want to see a bunch of material that glorifies terrorism theyre not going to see a bunch of material that glorifies suicide. Is there any distinction between action, or editing, that takes placasa result of an algorithm, as posed to an individu . I dont think so, your honor. These are rhythms dont spring from the ether. They are essentially computer programs designed humans to do iseditorial function. But what you do withsay, deep learning algorithms, teachers itself, and very little human intervention . You still had to have somebody who kind of create the universe for the algorithm to look at. Who is speaking . The algorim the person . The question, in these cases,wod bes facebook is speaking, youtube is speaking, because theyre the ones using these devices n their editorial direon on the massive volumes. The reason theye doing this, of course, sublimity would lots and lots of humans as well, but the reason they have to use the gorithms is the volume of material on the sites, whh just shows you the volume of editorial discretion. Finally, sorry to keep going, exactly what are they saying . What is the out of rhythm saying . I dont know. Im not on any ofthem yet, but what is it saying a consistent message . Usually, when we have early it s there parade, they didnt want certain people in there parade. You understood that. What are they saying here . They are saying thgs like facebook doesnt want pro terrorist stuff. Were not talking about terrorists here. Those on terrorists complaining about. I think we are actually taing about terrorism here. I ink if these laws going to affect what is i thought that was a crime. As i understood florida, they said that one provision in the act says nothing thats inconsistent with section 230. It seems to me that itis consistent with section 230. Your honor, there are things if you have a video on how to build a bo to blow up a church or meing, maybe thats prohibited by, you know, sort of th kind of illegality provision, but if theres something glorifying the attacks of october 7th and wanted these Companies Want to ke at off of the site, or is the mething on there that they wa to sort of glorified, you know, credibly thin teenage bulimi and they want to keep that off their site, they have the right to do that, and thats an important message. Just like hurley, a message that they aring is a message about what they exclude from their form. Justice alito . Met a lot ofnew terminology bouncing around in these cases. Out of curiosity, one them is content moderation. Could you define that r me . Content moderationtome, is just editorial discretion. It way to take all of th content that is potentially posted onthe site, exercise editorial discretion, in order to make it less offensive to users and adveiss. Is it anything more than a users euphemism for censorship . I will ask you this, if someone in 1970 was prosecuted and thrown in jail for opposing u. S. Participation in rlwar i, was that content detion . If the governments doing it, content moderation might be the euphemism for censorship. If a pratparty is doing it, content moderaonis a euphemism for editorial diretion, and theres a fundamental difference between the two for editorial discretion, are you saying nevermind. Enough no further question. Justice stoudimire . Mr. Clen, sort oftrying to take all of th in, and i thin i came into this very fferently than you have. I came tothis thinking, there are different functionalities from website so, some host news like the newsfeed in facebook. Some post like the justice was talking about and others gmail, where theyre st letting people contact each otr,irect messaging,ani was thinking that, since, i think, rightly, this law seems to coveall of that, that its so broad w,but i might have some plainly legitimate sweep. You might be okay to require direct messaging to give you notice, tobe consistent, to Pay Attention to the 30day registration. Me of these provisions might okay for those functions, t you are saying to me, thats not true. Can you articulate, ry specifically, why you think, at is stage, on a facial challenge, that we casay there is no plainly legitimate sweep, that this particular law after we sort it all out below this will still survive . I think the court below said, if you try to takeit out from justice gas answer, maybe i dont want to. Is itbecause this lawas passed with duty point scrimination in mind . Thats what the court below said. The court below said that, and that would be sufficient aces to take up the whe law. The law is also shot through with contentbased provisions. I think thats enou take out the whole law also, the entire lot every provision, chlee is speakerbased in its limited reach. With this courts case clearly sayingit was my recognition with the facial chalngsays when you lo speaker based distinctions, you can then open the lens a little bit ansee if those speakerbased provisions are infused with viewpoint is, nation or other discriminatory influences, and if you do that here you dont have to get past the governors fficient signing statement to understand that the restrictions on this statute s wanting to say, theyre only getting a big du in as stuff for the governor is telling you, were going after the viewpoints of the Silicon Valley oligarch all of a sudden, limiting it to the biggest pennies starts to tell you this is targeted like lar beam at the companies that they dont like the editorial discretion that was being exercised. Justice kagan . Let me ask the same kind of question in a different way. I suppose, ineaof this law, you had a law at was focused it excluded th kind of curated newsfeed your argument about editoria discretion that aps out. So, this law didnt touch those, but its anwith respect to gmail, and direct messaging, and then mow, and dropbox,anuber, with respect to all those things, a te could not accommodate on the basis ofvipoint, just as, maybe, a site couldnt discriminate on the basis of race, sex, sexual orientation, or what have you. It just added viewpoints to the list. Wouldnt that be all right . I actually dont think it will be all right, because all of those things are still in the expressive business. Well, do you think, you know, suppose, it didnt say, vipot it just says, you cant this, and eight on the basis of all of the usual protected characteristics. Is at all right . That would probably be all right, but it wouldnt save the whole statute. This is just on this statute. Its a statute it excludes youtube, cebook, and the Facebook Newsfeed, but direct messaging, then mow, all of those kind of things. It just id, you know, were not going to let you clude on the basis of racism, sex, and also not going to let you exclude pieces of viewpoints. The first pa of that statute, i dont think my clients would even challenge. Whether there is an abstract First Amendment right to have a black authors table for black History Month i know it is still on the basis of ewint. But when you throw viewpoint into there, i have to ask my clients whether they would challenge the statute. Obouy, thats not the statute we have here. If u ink what im saying, this is in part the statute you have here. That giveyoyour plainly legitimate sweep, because all its saying is that when you run a seic unlike in facebook eds, where your editoria discretion argument is goodbecause the platform is engaged in speech activities, well, when you are running then mow, youre not engaged in speech tities. So, when a state says to you, u know what . You have to serve everybody, irrespective of whether u like the political opinions are not, then it seems you have a ch less good argument, but this statute also says that. Doesnt it . Not really, Justice Kagan. I think we are in danger of losing sight of the actual statute. , togeto petition appendix 97a, and the definition of sensory use which include any action taken by social media platforms to lead, restricted, inhibit the publication or republication of spding a right to post rough post or add in any content or material posted by a user. The term also includes actions to inhibit the ability of the user or interact with another user cial media platforms. Sensor is all abouth expressive activity, post position is all about and specifically talks monday newsfeed, search results, and they give, essentially, lyrical candidates and journalistic enterpris right to nondiscrimination. Theyre going to pop upeven though i have no interest in politics. I just want to look at feeds about italian bicycles. I was to gethe florida politicians popping in there . Thats what this statute does. Then, you gothrough shadow banning which is not about y of the things youre talking abt. Shadow banning is all about content, thenwego to journalistic enterprises in place. Then, postgame tradition is all abouhoyou display the content. So, like, maybe the 30day prision . You could sort of say, th applies to, like, uber, t even if that is the case, if uberwas to change the content policies because they all of a sudden did wanting to try to deal with onesided issues, then a prlecomes up with a whole bunch of people using the comments in a really rude way, why couldnt they change eieditorial policy on the comments . I just donunderstand it. Then, all the duty to explain provisions. The duty to explain provisions are all driven by desis to exclude conduct content and that happened 1 times a quarr at youtube but it is a crushing blow with nothing to do with some of the other things youre talking about. Thank you. Juice gorsuch . Ste kavanaugh . To pick up on the word censorship that is being used in a loof different ways. When the government censors, when the government excludes speech from a Public Square, obviously, thats a violatn of the First Amendment. When a private individual or private enty makes decisions about what to include and what to exclude, thats precd, generally, editoria discretion. Even though you could view the private entitys decision to exclude something as, quote, private ceorship. Absolutely. That was the whole thrust of this courts decision in hallett. Suose the early case might have been a complete different case if that was an official city of boston parade, and the city of boston decided for the group. The whole reason that case came down the way did unanimously is because it was a private organization, exercising his First Amendment right to say, we dont want to live in our parade. How does 3 fit into that . I think 3 is further evidence, you ow obously, i think it ended in three or 303 is most relevant with colorado in that case yi to rely on the ir, much the wa my friends here rely on fair, and this court made clear in 303 doesnt work that way. You knowth is expressive activity. And so, you know, thfact that my friends st case is ir i think, just shows how radical this statute is, because this targets expresveactivity in its core. The solomon amendment said to the law schools, you have ve military equal time in e classroom. I think the case would have been 90 in the other way. Thats essentially what florida is yi to do here. On e procedural sture, i think this is important to understand whats the label for us. You have gone questions on this spot. Want to nail it down for my benefi ich is, you said that they came in and a post a p. I. Solely onthe ground that what was involv re were not expected activity or speech, but instead, conduct. Is that accurate . Thats accute came up in the context of how ch discovery we would have before we had preliminy injunction hearings. In that contex the state said, look, we are going to rest on this kind of threshold question, as my frie said, and that will limit discovery on both sides, and in the 11th rcuit, it was even more clear, because in the th circuit, the position of the state of florida was, like, were not going to engage on intermediate scrutiny at all. Were putting all oueggs in the expressive we think the statute does target excessive tity in some respects, and we affirmed, inthis case, what is left to juiclbjtapes. Orgs question, whats left to happen . That means it can go in place for the next year or two until final judgment. What will happen with litigaon there will be litigation on the merits. I dont even think were past the inwhere we can amend the courtes us we better have a good supply allenge in there. I suppose we can dothat. The point is litigation will go on, there will be discovery less florida decides, at that point, theres a lot that they tried to pass a more narrow statute. Otherwise, there would be scovery, essentially the whole nine yards, but in the interim, i just cant emphasize enough, particularly the 100,000 penalty provision. All thats enforced, then, what should happen in e interim before final judgment comes ba us, potentially, in a year or two om now. Should it be in effect wi not be in effect until it comes back . Yes. It should be in fe. If the comes back promotion course to the court of appeals. Yokn, what will happen . I mean, you have aldeto it. What will happen in the year, do you think . I dont think we have heard much about exactly what you are concerned about. In other words, yorevery concerned about this, thats obviou but what are the specifics in that . Nely, this statute goes into effect, it would ha to fundamentally change our business de, and i think each company is going to ke their own judgment about how ey come into compliance. Part of the irony here is that, as to one of the say, this will promote speech, but allow us to dissematon the basis of content as long aswe do it consistently. So, we might do in the interim at least some ofthe Companies Might lets do only puppy dogs, at least in florida, do we can get this straightened out, because thats the one way as you know, the same companies are getting hammered people that say, were not doing enough tokeep material insightful to children f these sites, yet the laws make it impossible for us to keep material that is harmful to childrenofof our sides must we take so much material off of our sites that nobody can say that were not being inconsistent, were not disseminating. This is a viewpoint is, nati. Can you say a word about e word consistency, what you think that entails . I have idea. One of the other arguments we have in this case, it is not part of a pulmonary injunction you vebefore us to make this challenge. I think, when you are targeting editorial discretion, to put a consistency requirement, try to tell the new yorktimes to be consistent. Hant had anybody who thinks the New York Times 100 assistant in its editorial pocy. But but a state action requirement th ey editorialize consistently, or somebody concern for 1000 or the state can put them into court, i think ill be the most obvis rst amendment violation in the world. Thanyo just as baird . Practicaqution. Lets assume that i agree with you about youtube and facebook ed newsfeeds, but i dont ntto say facebook marketple,mail or dms are not within the statute for claiming a legitimate sweep. If i ask you the question, can use to win, i know you will say, yes, but how would we write that opinion . Give us a standard without having a canvas whether all of thosthgs would be within honestly, im nosure you could reach that result without definitively hointhat that stuff the plainl legitimate sweep of the statute. You dont have the record for that in court becae of litigation decisions that were deby the state of florida. I think what yowould do is you would affirm the preliminary injunction, then he would, perhap lament the fact that the record, here, is somewhat stunted, and then he would make clear that there might be a possibily modify the preliminary injunction on ma. At that point, i think when e lower courts see all the details about w ese things actually ora, they may not have the same skepticism you are arng with. But i think theres lots of ways to write the decion th keeps again whats in place right now is a pulmonary injunction for the benefit of my clients. People that havent sued yet, the statutof theory can apply to them, but my clients have the benefit of the preliminary injunction, and all this mitigation goes rwd. Obviously, anything this court says, its opiniosuests what the future court of the litigation should be it is going to be powerfully effective, in terms of how this case gets litigated in the District Court. Thank you. Justice jackson . I just want to push back r a minute on the private berth public distinction. I think we agree that the government couldnt make edorl judgments about what people can speak and say in the Public Square, what do you do with the fact that now, today, the internet is the Public Square . I appreciate that these companies are private companies , but if the speech, now,is occurring in this environment, why wouldnt the same concerns about censorship apply . So, two reasons, yo honor. One is, i really do think that censorship is only something thgornment can do to you. If it is nothe government, you really should enable censorship. It is just a category of the state. Here is the second thing. U would worry about this if websites like the cable mpanies in turner had some sort of a bottleneck control where they could limit ur ability to go to some other website and engage in spch if the way websites worked was somehow that if you sign up for facebook, then facebook could limit you to only 19 other websitesanfacebook could dictate which 20 websites you saw, this would be lot more keurner, but as this court said in reno in 1997, when he was confronted than argument about that than es turner decision, this cot sically said, the internet is like the opposite of turner. Theres so much information out there, its so relatively easy to have a w website come on, and reality tells us that. Right . X is not what what was, and tiktok came out of nowhere. I ink i get your point. Let me ask you about the illegitimate pot. What is illegitimate about a government regulation that attempts to reque ese openingsto apply, consistently, their procedures . I guess i dont understand why the enforcement of, sort of, antidetermination principles illegitimate. So, consisnc and what is being look at as a government mandate when whatis being regulated is expresve activity is, i think, a clear First Amendment violio and i dont think hope is you know, some of the judgments are very tricky judgments. Okay, were going to take some of the stuff so, this givea license to anyone even if theres somedy whos only going to pull 2 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 terms of use. Thank you. Mr. Chi mr. Cechief justice,the First Amendment prects entities that cura range and present other peoples words and images in expressi mpilations. Its important you held those parade sponsors and web designers. It also covers social media platforms. Those platforms shape and present collections of content on their websit and that inherently expresses activity as protteby the First Amendment. That does not mean that every business that transmits ee can claim First Amendment protection for that conduct. Telephone and delivery coans that carry speech from point a to point b arent shielded by the First Amendment d they provide that service. Thats because theyre not producing any expression of eir own. Not because there is a comm carrieorCommunications Company exception. None of this is to say social media platforms are immune from government regulation and government at every leve have an important interest in facilitating communication and the Free Exchange of ideas. In promoting thatinrest governments have to stay within the bounds ofthFirst Amendment and these state laws which restrict the platform to hance the relative voice of ceain users to withstand constitutional scrutiny. I welcome the courts question. Normally you are defending regulations. If the u. S. Government did exactly what these respondents are doing with that be vernment speech . If im understanding correctly, youre suggesting the government se would open a form and allow uss to post messages on that. That would imice First Amendment principles because the government might create someinlike a public forum whe would itself be bound by the constitution. I dont thinth would necessarily qualy the governments own speech. The difference here is the speech platforms are private rts and not bound by the First Amendment as an initial matter. Mr. Clement sa the difference is if the government does it it is censoring. If a private party does it it is content moderation. S phemisms bypass me sometimes. Or elude me. Do you agree with that distinction . Yes. The difference is that as observed if it were tofor example dictate what kind of speech has to appear and in what order that could create a First Amendment violation. Here its the private platforms themselves to making that choice. In our recognition they are creating their own expressive product in doing so. These are website featuring text elements, speech, photos, videos. The platforms are private parties not bound by the constitution deciding how they want that to look and in what order. Thats expressive. What are they saying . It depends on the platform. I think there is a wide variety in the kind of content the platforms seem objectionable, the content they think might be harmful or will drive away users and advertisers. There is no one single message that each is conveying, but if you wanted to look at the lowest common denominator at the very least it seems like there content moderation policy and body of judgment is material we think might be of interest to our users or the users will find interesting and worthy of looking at. Its a lot like the parade in that circumstance where the court specifically said maybe youre lenient and let a lot of content in, you cant identify a single discernible message from the parade as a whole but theres still the baseline of the parade sponsors signaling this is Something Worthy of looking at in my parade. You indicate in your brief that netchoice sometimes errors by suggesting the dissemination of speech is always expressive activity. I just wonder how we are supposed to do with that fact if i agree with you . In this challenge context, particularly when many of the platforms, while reserving the right to prohibit various posts , which of which are consistent with section 230 also say and guarantee users a right to express their ideas and opinions freely quoting from one of them. Even if the platform disagrees. They say they do not endorse and are not responsible. Im quoting from some of these terms of service. It sure sounds a lot like conduit doesnt it . I think theres a difference between a peer conduit, a company that is quite literally engaged in transmitting it weather across telephone wires or telegraph or on a delivery truck like u. P. S. And fedex. The difference between that conduit and with the platforms are doing here is that are not just literally facilitating users ability to communicate with other users, they are taking that some would say they would not interfere and they are promising you get to express your views freely and openly. They are promising and representing rather that your views dont represent theirs and everybody understands that. Those are their terms of service. This is a facial challenge again. I think separating is pretty difficult. I think looking at their terms of service it is certainly true that many of the platforms have generally indicated they welcome a wide variety of views but it would be incorrect to say theyre holding themselves out as forms for all possible speech. The sames terms of service contain the kind of editorial policies issue here and the state laws are narrowly targeted on the kind the platforms want to include. I acknowledge their terms of service also include the right to exclude certain speech. Those are usually like section 230 the way they discuss it. After that, they do seem to promise a whole lot of latitude and when you look at classic common carriers its very similar. They dont give up the right to exclude certain activities or speech that might be detrimental to their business or might be otherwise unregulated. That holds true for telegraphs, telephones even. But, beyond that your minimum they are open to all. That seems to be how a lot of them are representing themselves to the public. The key difference with common carriers the kind of industries that have traditionally been regulated in the transportation sector, railroad, Communications Company and so forth is they are not creating any kind of expressive speech product in providing their service. Government regulation says dont discriminate they are just the opposite back in the day. Although they are transmitting the messages there themselves arent creating speech on the side. They curated a lot of the speech or tried to including political speech which they didnt agree with. Its wrong to call that generation. They tried to adopt cash whatever you spasm. Thats the difference here. Okay. If the expression of the user is theres because they curate it where does that leave section 230 because the protection there, as i understood it, was that section 230 says we will not treat you as publishers so long as you its not your communication in whole or in part is what the definition says. If its now their communication in part two they lose their 230 protections . I think its important to distinguish between two different types of speech. There are the individual user posts on these platforms and thats what 230 says the platform cant be held liable for. The kind we think is protected here under the First Amendment is not each individual post of the user, but the way the platform shapes that expression by compiling it, exercising the filtering function let me interrupt you. I understand its not their communication. Why isnt it their communication in part . If its part of this larger mosaic of editorialized discretion and the whole feel of the website . I dont think theres any basic incompatibility with immunizing them and recognizing they retained First Amendment the whole premise of section 230 is they are common carriers and theyre not going to be held liable in part because it isnt their expression . They are a conduit . Not at all. To the extent the states are trying to argue that section 230 reflects the judgment that the platforms are not publishing and speaking here there wouldve been no need to enact section 230 if that were the case. Congress recognized the plat worms creating a speech product they are literally publishers and congress wanted to grant them immunity and it was for the purpose of encouraging this kind of discussion. Thats the point of the Good Samaritan blocking provision. General, theres been talk about the procedural posture of the case. How it was litigated below, what is available if it goes back when it goes back. I would like your views on that. We presented our argument in this case taking away had been litigated at face value. Below, florida treated this law as though the provision and scope was focused on the true social media platforms. The website you have in mind when i use that term. Youtube, facebook. Floridas presentation to the lower courts was this isnt a regulation of their speech at all. I understand the force has been asking other other types of websites that might be covered, could this extend to direct messaging . We dont have a dog in that fight to the extent there is other applications of the law. Thats not how florida sought to defend it. Which of the court do . Its been litigated one way and now it looks like theres other applications you would have in mind. I urge the court to take a narrow approach here. Florida defended this on the basis that could control what the true social media platforms are doing with respect to their websites and if i were the court i would want to reserve judgment on the application to ecommerce sites, to companies which dont seem to be creating a comfortable type of product. They could save those issues for another day or for Factual Development in this case. They look at the decision the record was created based on the litigation by the party. Im baffled by your answer to the chief justice. Didnt florida argue that a preliminary injunction should not be issued because the plaintiffs had not shown they were likely to succeed on their facial challenge . Did they not make the argument . They did but they didnt go further and say the reason for that is because heres direct messaging. Do you think that was not before us . It would be hard to issue that out because theres a lot of clarity. It may be hard to figure out but my question was is the issue before us . I think the way florida litigated this makes it difficult to say the issue is before you. Usually the courts hold the party to the arguments the plus below and were passed upon and theres no course that has considered questions about other types of platforms or other types of functionality. If insufficient to allow us to comfortably decide whether the facial challenge standard or overbreadth standard is met isnt that the fault of the plaintiffs and isnt the remedy to vacate and remand for all of that to be fleshed out . That that when its a necessarily anything about what will happen in the near future. It would mean it would be litigated and perhaps if the plaintiffs were to develop the record in the way that florida thinks they should and provides a list of all of the netchoice members who were covered by this and goes through all of the functions they perform and assesses whether the law is unconstitutional in every application or whether it has a legitimate scope that is constitutional then it would be entitled to a preliminary injunction. I dont want to resist the idea that if this court thinks those issues are trumped it before it and the analysis of the challenge notwithstanding the way the parties mitigated the case i dont want to stand in the way. I think there would be value in the court making clear that with respect to the lower court , mainly the idea that the stage really can control the duration and editorial function of the true social media platforms with respect to their expressive product. That seems a type of provision and valid in all of its applications with respect to those platforms. And i asked to comment on a few things . I understood it to say that the email function could be denied on the basis of access to that, direct messaging could be designed on the basis of viewpoint. Do you agree . We disagree. We think both direct messaging and email service seems a little more like the peer transmission of the medication so we would likely put those in the box of Internet Service providers and so forth. We dont think that is an inherently expressive product in the same way as the main website that has the new speed and curating and deciding how to prioritize. You agree on the basis of bigness violates the First Amendment . I dont think that on its own simply trying to regulate based on the size of a company is always a First Amendment problem. Do you agree that a private artie cannot engage in censorship . Let me give an example. A private law school says that any student who expresses support for israel war with hamas will be expelled. Would that be censorship or content moderation . I guess the first question would have to be if theres some kind of regulation that prohibits from acting in that way. If youre thinking about a public accommodations law firm im talking about terminology. Thats not censorship, thats content moderation. You could save the parade and hurley was censoring. You could say the newspaper was censoring the candidate who wanted to publish his speech. I think the particular word you used doesnt matter. What you look at is whether what is being regulated by the government is something expressive by a private party. Theres a particular word you used. It matters only to the extent that some may want to resist the orwellian temptation to recategorize offensive conduct in seemingly bland terms. Thank you. General, i think im finally understanding the argument. Let me make sure i do. When i came in, i had the reaction which is we should vacate. I have been thinking about what does that do to the preliminary injunction . I agree with you. As i understand with the state did below was to say we dont have to offer you any justification for any part because everybody of the social Media Companies are common carriers. I think whats clear is, from our questioning, that its not true and there are many functions that are expressive that we cant say are common carriers. Even if we did say they were like common carriers the issue would be one of which is the level of scrutiny and the state said there is no level of scrutiny. They basically said we can do anything we want to common carriers and to any of the expressive platforming or d platforming but i dont think thats true. They cant come in. Im not sure they can to any of these things or some of these things even to common carriers. It is a sort of content or content exclusion. A common carrier does not have to permit unruly behavior. It doesnt have to permit somebody off the train if they are threatening somebody else or if doing other things. I guess what youre saying is lets keep the injunction in place, vacate and reman. Affirm on the injunction but vacate and reman on the application and how based on what level of scrutiny given the function, correct . We think the court should hold parties the way they litigated this case and he did it for the review. Its uncommon for the court to start considering the arguments that werent presented by the party defending its law below. If i can respond on the common carrier point because i think you put your finger on a really important response to many of the arguments florida is making. They suggest the designation of a platform is a common carrier has significance but its irrelevant to entering the First Amendment question. Its not Like Companies treated as common carriers have no First Amendment rights with respect to their expressive activity. You take a railroad and you can regulate it as a common carrier with the transportation of passengers but if we create a magazine for those passengers to peruse thats to full First Amendment protection. The reason the mandate in the common carrier scenario usually poses no problem under the First Amendment is theres no speech or expressive activity in caring passengers arent carrying communication. Its different with respect to the activity that florida is to regulate because that is inherently expressive. Its putting together a website with pictures and video and arranging it and that looks like the kind of protected editorial and territorial activity the court recognized in other cases. Whether you say they are a common carrier or not we think it is beside the point. I think i want to try again on this question of where this leaves us because the post i agree with pretty much what you said, lets take that as an assumption. When florida is trying to regulate Facebook Newsfeed it cant do that because Facebook Newsfeed is itself providing the kind of speech product. When florida is trying to regulate gmail, maybe it can do that because gmail is not in the business of providing that sort of speech product. If we assume that this statute covers a variety of things that are gmail like, direct messaging, huber, things that are not creating speech products and we have this First Amendment doctrine that says if you can find a legitimate suite we cant overrule something. You dont really want you dont really want to allow this to go into effect because of the unconstitutional applications that you are talking about with respect to all these companies that are creating speech products. What do we do . If you were confident that the state law had these applications and the particular provision would regulate the kinds of companies that you are referring to that arent grading and expressive speech product i think that would but i dont think you can have that because thats not how florida litigated the case below. Its not as though it said the statute is not invalid because it applies to gmail. We can say we cant even think about those questions because this was litigated in a certain way. Thats one option. Its obvious this covers a lot of stuff. It does not look like facebook feed. Suppose we take notice of that, then what . What i would do is make clear that with respect to the issue florida did present and that the 11th circuit and court resolve the court is wrong to say it can apply these provisions to the social Media Companies engaged in creating and expressive product and make that much clearer. Otherwise it send it back and it will be right back up here in an emergency posture again with respect to one of those companies. I think the court can decide that much. The issue below and decide it. If you think theres additional questions about the scope of the florida law and whether it might have valid application along the lines we have been discussing i dont have a particular interest on behalf of the United States and what you do with the injunction in the meantime. I think the idea that its backed up by prayer violation and that could have a huge Chilling Effect on any protective speech out there that is occurring. I think the court could say there are unresolved issues about concrete applications of this law and await development on that. This is a facial challenge. Its an all or nothing deal. How is the court supposed to make rulings in a facial challenge . I would do it based on the Party Presentation principal. I got the first point. I might run out of options i agree these are hard questions. I suppose you could certify the Florida Supreme Court the unresolved issues of florida law thinking that is necessary to reach a disposition in this case. Thank you. Want to followup on questions and he will have the opportunity since this is a continue to followup on mine if he wants to. I think he asked a good thought provoking important question and used the torn 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 state taking over media like in some other countries and we made clear that we dont want to do that. We have a different model here and have since the beginning. We dont want the state interfering with these private choices. This is my question. They dealt with the idea newspapers have become so concentrated and so big that maybe we should have a different rule and in the courts opinion chief justice opinion for Unanimous Court talk about those changes. I mentioned those before. He said those changes of placing a few hands to inform the American People and shape Public Opinion the abuses of bias and manipulative reportage are said to be the result of fast accumulations of power in the modern media empires. The claim the public has lost any ability to respond the monopoly means the communication allows for little or no critical analysis of the media. And he says from this premise his reason that the only effective way to ensure fairness and accuracy is to provide for the government to take affirmative action. Then he goes on and explains we are 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 is governmental this brings about a confrontation with the express provisions of the First Amendment. Compelling editors or publishers to publish with that which reason tells them should not be published is what is an issue at this case. So he says for the court in 1973 we dont have a big exception to the idea that the First Amendment distinguishes the state from the private sector, private individuals. Heres my question. 50 years later. How does that principle articulate and apply to the Current Situation . I think that it does establish a bright line proposition that the state even if it has concern about market power and dominance and control cannot directly overtake the editorial function and a private party expressing a product from making those kinds of judgments of how to present that product. I think there are legitimate concerns here about the kind of power and influence that social media platforms wheeled. I want to emphasize its not like the government lacks tools to deal with this. Its not as though it cannot regulate at all. Theres a whole body of regulation that would be permissible that would target conduct and things like antitrust laws applied or data privacy or Consumer Protection. Things we think when it come into conflict with the First Amendment at all and even in a situation where the government does think its necessary to regulate in a manner that will affect protected speech rights thats not the end of the inquiry. You still have a chance as a government to establish your can pass like it did in the turner case you were referring to earlier. I want to be clear we are not suggesting that governments are powerless to respond to some concerns mentioned. One place to go with the government is to disclosure to ensuring that if you think the platforms have orwellian policies you make sure users have information about how theyre acting, what their policies are, the generalized Disclosure Requirements that were not invalidated by the lower courts and arent before this court. The key was content neutral there. Turner concluded the interest governmental interest that started there as he put it was unrelated to suppression of expression. The problem here is that florida has precisely the same interest but the interest that florida has asserted in these content moderation choices is to change the speech on the platform. It doesnt like the way the platforms are moderating content and wants them to create a new expressive product that reflects the states judgment of what should go on the website whether candidate speech, speech by journalistic entities or otherwise. That is not an interest unrelated to the suppression of expression. It should apply intermediate scrutiny and find the state cant get out with that interest. I asked mr. Clement at the end which Justice Kagan also asked. I want to be sure im understanding maybe exactly your answer. It was different than mr. Clements to me. You are pointing out that if we vacate and send it back it will be right appear in emergency posture. You are encouraging us to address at least this question of this Facebook Newsfeed as expressive. If i think there are problems with some other applications which may be legitimate do you think its an option to say we think some of these editorial applications would be unconstitutional but because we dont know about these other applications they might be within the statute legitimate suites that we will vacate and reman anyway and send it back for the court to sort out . I think thats one possible approach here. I want to express strong agreement with the instinct. I think that underlies that question. The court shouldnt do what is more than necessary with respect to the types of applications we have been discussing. Gmail or websites or email servers and that kind of thing. I think they present a distinctive issue and they think those are properly in this case i dont think the Court Received the briefing 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 court. One other question. When you are talking to the distinction between the post and the post content for which the platform would not be liable and then the fee. You are saying the speech, the speech that is the platform is not whats on the post. The platform cant be liable. Could a platform be liable if its algorithm or feed boosted things like the tide pods challenge . I think that this is a difficult issue about how to 30 might reply to respect the decisions the platform is making itself with respect to how to structure its service. I want to be careful because i have to confess i havent gone back recently to look at the briefly submitted last term that i think touch on some issues. I think there are circumstances where if the thing thats causing harm is the platforms own conduct and how it structures its service thats something that might not be immunized under section 230. All is separate from the First Amendment issue in the case because whether or not you recognize they have a speech product affects the proper interpretation of the statute under 230 it means there are some situations where they want have immunity. Thats a distinct question from whether they are creating a speech product that warns First Amendment protection. I think theres a bunch of landmines and if that is a landmine and what we say about this is that this is entitled to First Amendment protection i do think that has a section 230 implications for another case. Its tricky to write in opinion when you know there might be landmines. I would think the court could try to carefully cabinet and make clear it is not on the specific statutory terms into 30 or whether this First Amendment characterization of the compilation fits within the provision decided earlier and the court can very clearly outline that to try to caution away from conflating those two issues. I hear you struggling valiantly to set aside other kinds of applications and funds to a number of the questions. I cant figure out why those other applications arent in this case. I think florida defended the law as netchoice challenge did and netchoice brought a facial challenge. At first i was a little surprised the government didnt focus on that but i understood that to mean that netchoice bears the burden in this case and netchoice has to we have a difference of opinion as to how you say it but that burden is to show there is either no valid application of this law or that the law has a legitimate suite. If we can identify other valid applications, if we see world in which uber and service things or whatnot could be regulated i dont understand why that just doesnt mean that netchoice has not met its burden and so thats the answer. I think you would have to conduct did at a more granular level. Its not just about the universal platforms out there and what functionality they offer, but you have to parse the challenged provision of the board of law and ask, are those platforms engaged in a relevant conduct . I agree, but the question is isnt it their burden to have presented the case to us in that way . If we dont have that information i say dont they lose . A want to say we dont have a particular stake and how you think about their own litigation decision on both sides but this case very much was teed up as being all about what they called the big three social Media Companies thats clearly the central aim. It was focused not on the uber of the world but on the core function of creating an expressive website that principally contains user generated components and the provisions that are challenged here are the ones focused on the type of editorial discretion that those types of platforms are engaged in. I dont think its easy that maybe we look in the dark of this law and peek around the corner and find some possible valid application. Thats not how they sought to defend the law and i think it would go down a complicated road to allow the core provisions. The confusion i think is the law is broad. We said that. Many people have noticed that it could apply to all sorts of things and yet you say it was below as if it was narrow. I appreciate that but we have a challenge on the table. To the extent the entire law goes that these other applications would go to. Isnt that problematic when talking about facial challenges . You are looking in the posture of a preliminary injunction. I dont think its definitively resolving and issuing the final say on exactly what the status of this law is. I have sympathy here. In preparation for this argument ive been working with my team to say does this cover direct messaging . We have been trying to study the law and figure it out ourselves. Theres ambiguity of what exactly the provisions require. I dont think that is a basis to not resolve the issue in the case which is with respect to what we know the state law does. It would require the social media platform creating the convocation of thirdparty speech to fundamentally alter their product they are offering. Thank you. Rebuttal . On the procedural posture the fact theres no record in this case is netchoice fault. Litigating the pi very fast. We actually wanted to slow it down and take discovery. We offered to voluntarily stay the law while we did that. Netchoice said we want to go fast and went fast. There was no opportunity to take discovery and when we appealed we tried to say lets litigate this case and do discovery and they said no. We want to stay discovery and they oblige. The fact theres no record is not floridas fall. It is netchoices fault. Theres applications at the statute and contrary to what my friend said it does apply to uber. Right before that, the definition of the platform. If uber d platform a user that is covered. If uber says to a journalistic enterprise i dont like the cut of your jib and broadcast you did last week that is covered. That is something there. Its not just gmail, there are messaging functions and constitutional applications. The consequences of my friends argument my friend seems to think that even a traditional common carrier has a First Amendment right to censor anything. Verizon can turn around tomorrow and have a First Amendment right to kick all democrats are all republicans off the platform. That would have sweeping consequences. I do not think it is supported. Verizon has no message. That principle is sustained from what my friend for the United States is shane. Shes saying they arrange material on the site in various ways, but that doesnt speak at all to whether they had a constitutional right to censor. Just because you have to carry content or carry a user you can still arrange it. Thats the fundamental conflation the United States does. It ignores the distinction between the hosting function and organizational function. I think the court needs to keep separate in its mind and i would commend the court cited on page 24 of the brief. Thank you. Thank you. The case is submitted