That will make the product a lot less desirable. On the other hand, the state of florida says it would be a huge when against censorship. The idea that individuals should be able to post to their political views, whatever they may be, on these sites. That it is their First Amendment rights to do so. The stakes in this case are pretty big and we will see what the Supreme Court will do. Jimmy hoover is a Supreme Court republican at the national law journal. Thank you for the insight. Thanks. 22277, moody versus netchoice. Mr. Whitaker . Mr. Chief justice and may it please the court. Internet platforms today control the way millions of americans communicate with each other and with the world. Platforms achieve that success by marketing themselves as neutral forums for free speech. Now that they host the communications of billions of users, they sing a very different tune. They now say they are in fact editors of their users speech, rather like a newspaper. They contend they possess a broad First Amendment right to censor anything they host on their sites, even when doing so contradict their own representations to consumers. But the design of the First Amendment is to prevent the suppression of speech, not to enable it. That is why the Telephone Company and Delivery Service has no first moment right to use their services as a chokepoint to silence those they disfavor. Broadly facilitating communication in that way is conduct, not speech. If verizon asserted a first moment right to cancel disfavored clients at a whim, that would fail. Social Networking Companies are in the business of transmitting their users speech. Their users are the one who create and select the content that appears on their sites. The platforms disavowal responsibility for that conduct in their terms of service. The platforms do sort and facilitate the presentation of user speech. This court just last term in twitter versus tamana describe those tools as a little more than passive mechanisms for organizing vast amount of thirdparty content. The platforms do not have a First Amendment right to apply their censorship policies in inconsistent manner and to censor and deplatform certain users. I welcome your questions. Counsel, it would seem that this case is a facial challenge. To some extent, it relies on the doctrine but that seems to be an odd fit because the respondent represents virtually all of the platforms and it would be easy enough for a platform whos affected to bring it as an applied challenge. Would you comment on that . Or at least address the fact that this is a facial challenge. Certainly, your honor. I think thats a significant aspect of this case. It comes to the court on a facial challenge which means the only question before the court is whether the statute has a plainly legitimate sweep. I dont understand them. To be making an overbreadth challenge would rely on the effects on third parties. They are principally relying on the effects on their members if they were bringing an overbreadth challenge, they would have to show serious thirdparty how would they do that if when they havent shown there is no way that this statute can be applied that is consistent with the constitution . Have they met that . They certainly have not. We think the statute has a plainly legitimate sweep. Certainly, there are a number of platforms that are open to all comers and content, much like a traditional common carrier. As a traditional common carrier consistent with the First Amendment would be subject to hosting requirements, nondiscrimination requirements, we think the platforms satisfy that characterization which are absolutely would give this statute a plainly legitimate this is such an odd case for our usual jurisprudence. It seemed like your law is covering just about every social media platform on the internet. We have nontraditional social media platforms like smartphones and others who have submitted a mici brief telling them that this law could cover them. This is so broad. Its covering almost everything. The one thing i know about the internet is that the variety is infinite. At one point in a challenge like this one does the law become so generalized, so broad, so unspecific, really, that you bear the burden of coming in and telling us what exactly the sweep is, and telling us how there is a legitimate sweep of a meaningful swath of cases this law could cover but not others . When does the burden shift to the state when it writes a law also broad that it indeterminate . I dont think so, your honor. I still think it is their burden as the plaintiff challenging the action to show that the law lacks a plainly legitimate sweep. Let me say a word about the breadth of the law. The legislature did define the term social media platform, which is part of what triggers the laws application, but the breadth of that definition, which would not cover every single website, it would cover large websites with large revenues and subscribers and the like, but the breadth of the law is narrowed by the fact that the substantive provisions of the law are regulating websites that host User Generated Content. That is what the substantive due the legislature defined the so lets talk about etsy. That is a marketplace. I will try, in some ways it is like an online bookstore, online magazine, online newspaper, online whatever you want to call it, and online supermarket. But its not, because even though it has infinite space, it really doesnt. Viewers, myself included, or users, cant access the millions of things that are on the internet and actually get through them and pick the things we want because theres too much information. So we are limited by human attention span. So are they. But lets look at etsy. Etsy is a supermarket that only wants to sell vintage close. It will and does limit user content. Its a free marketplace but it says to the people who come onto its marketplace, we only want this kind of product. They are going to have to censor, they are going to have to take people off, they will have to do all the things that your laws say they cant do without all of these conditions. Why is that . Why should we be permitting and under what level of scrutiny would we be looking at this broad application of this law that affects someone who all they want to do is sell a particular kind of product, and they have Community Standards and they tell you they dont want you to curse, they dont want you to talk politics, they dont want you to do whatever. All they want you to do is sell your product. But if they are a public marketplace, which they are, this law would cover them. I think thats right, your honor. But let me say a word about how the law might apply to etsy. It would not regulate the goods at sea is selling. With the law regulates is the moderation of User Generated Content. It would only apply to etsy to the extent im not sure to what extent it would apply to etsy. I guess people are uploading User Generated Content in connection with the sale of goods. It doesnt limit what goods etsy can limit its marketplace two. Well, it opens it up for sale of goods. It says dont speak about politics because thats not what our marketplace is about. That viewpoint discrimination. This falls under a whole lot of your listings and disclosure requirements. Why are we imposing that on Something Like this . In prune yard versus robbins, this court held that the state of california could regulate the speech activity of a Shopping Mall which was hosting speech. But not inside the stores. We said that they could come, but if they go inside the store, we didnt say anything that someone couldnt stand on a platform in the middle of the store and scream out their political message. We said the common areas where we are permitting others to speak, we will let this speaker speak anything he or she wants thats why im afraid of all of these commonlaw rules you are trying to analogize to. Your honor, i do think etsy is similar as it is in fact hosting speech and some expression as an incident to some other commercial and provide enterprise and that makes etsys speech interest even weaker. You began your presentation talking about concern about the market power and ability of the social media platforms to control what people do. Your response to that is going to be resizing the power of the state to control what goes on on the social media platforms. I wonder since we are talking about the First Amendment, whether our first concerns could be with the state, regulating with what we have called the modern Public Square. I think you certainly should be concerned about that, your honor. What i would say is that the kind of regulation the state of florida is imposing is one that is familiar to the law when you have businesses that have generally opened their facilities to all commerce and content, this is the way it has worked for centuries. If you were an innkeeper and held yourself out as open to the public, you could be permitted to act in accordance with that voluntarily chosen business model, so i think the court should proceed carefully, but one thing thats important to keep in mind is there is a First Amendment interest in ensuring that large, powerful businesses that have undertaken to host massive amounts of speech and have the power to silence those speakers, the state has a First Amendment interest in ensuring the free dissemination of ideas. Is there any aspect of social media that you think is protected by the First Amendment . Yes, your honor. I can certainly imagine a platform that would be subject to this law that would indeed have First Amendment rights. We point out in our brief that if you had an internet platform, that indeed had a platform driven message was selective on the front end, democrats. Com, i think it would be a different analysis compared to a company like facebook or youtube who is in the business of basically trying to get as many eyeballs on their site as possible. But why is it different . When we had the parade case, we said they dont have a lot of rules but they have some rules. We are going to respect the rules they do have even though they let a lot of people come in. They dont let a few people come in and that seems to be important. Similarly here, facebook, youtube, these are paradigmatic social Media Companies and they have rules about content. You cant have hate speech. You cant have misinformation with respect to particular subject matter areas. Somebody can say maybe they should enforce them even more than they do, but they do seem to take them seriously. They have thousands and thousands of employees who are devoted to enforcing those rules. So why arent they making content judgments not quite as explicit as the kind in your hypothetical, but definitely they are making content judgments about the kind of speech that they think they want on the site and the kinds of speech they think is intolerable. Theres a lot in there, your honor. Maybe i can start with the hurley case. In hurley, you had a parade may be start with a more general question. Im happy for you to talk about hurley. I can go anytime you want. The broader question about rules of the road and the like. Common carriers have always conducted their businesses subject to general rules of the quorum. I think the fact that the platforms have general rules of decorum, upwards of 99 for all that content moderation, thats a product of the fact that they host so much content. The fact remains upwards of 99 of what goes on the platforms is passed through without review. They have spam filters on the front end and the like. That 1 seems to have gotten some people extremely angry. The 1 thats like, we dont want antivaxxers on our site or we dont want insurrectionists on our site. That is what motivated the laws and thats whats getting people upset about them. Other people have different views about what it means to provide misinformation as to voting and things like that. Thats the point. Some sites say this kind of talk about vaccination policy is good and some people can say its bad, but its up to the individual speakers. The fact that some people are angry about content moderation doesnt show that its their speech. We dont know whether the advertisers think its their speech or whether they just disagree. There are advertisers and people angry at speech who dont get a hecklers veto on the law. We know the fact that a hosting decision is ideologically charged and causes controversy cannot be the end of the game. I think rumsfeld versus fairwood would have had to come out the other way. In rumsfeld, the law school felt strongly that the military were being bigots and they did not want them on campus and yet this court did not look to the ideological controversy surrounding those decisions. Instead it looked at objectively whether the law schools were engaged in inherently expressive conduct. It looked at the fact that the schools were getting money from the federal government. The federal government thought, if they get our money, we have to allow military recruiters on campus. I dont think it has much to do with the issues today at all. Mr. Chief justice, its difficult to argue with me you about what rumsfeld versus fair means. But let me take a crack. As i read your opinion, you did not rely on the funding aspect of the case to reach the conclusion that what was going on was not First Amendment protected conduct. You were willing to spot them at the question would be exactly the same if it were a direct regulation of speech as opposed to a funding condition. I absolutely think the analysis in that case directly speaks to this. Can i ask about a different precedent about what we said in buckley . This picks up on the chief justices earlier comment about Government Intervention because of the power of the social Media Companies. It seems like in buckley in 1976, a really important sentence in First Amendment jurisprudence, the context that the government may restrict the speech of some elements of society to enhance the relative voice of others is wholly foreign to the First Amendment and that seems to be what you responded with to the chief justice. Then in tornillo, the court went on about the power of newspapers and the court said they recognized the context about best changes placed in a few hands, the power to inform the American People and shape public opinion. That had led to abuses of bias and manipulation and the court accepted all that but still said that wasnt good enough to allow some kind of government mandated fairness to apply. How do you deal with those two principles . First of all, if you agree with their frontline position that what is being regulated here is conduct, not speech, you dont get into interest and scrutiny and all that. The law advances the First Amendment interests that i mentioned, but that that interest that our law is serving, if you got to a point in the analysis that we fired consideration of those do you agree if speech is involved in those cases, that those cases mean they lose . No, i dont agree with that. The reason is because the interests that our laws serve our legitimate, and its hard because different parts of the law serve different interests. I think the one that sounds and youre concerned that his most directly implicated would be the hosting requirement applicable to journalistic enterprises. One provision of the law says that the platforms cannot censor, shadow band or deplatform. Journalistic enterprises based on the content of their publication or broadcast. That serves an interest similar to the interest that this court recognizes as legitimate intern in turner. When Congress Imposed on Cable Operators must carry obligation for broadcasters. As a broadcaster, what the court said was there was not just a legitimate interest in promoting the free dissemination of ideas through broadcasting, but it was indeed a highly compelling interest. I think the journalistic enterprise provision serves that interest. There are other interests the law serves. The consistency provision is a Consumer Protection measure. The consistency provision which is the heart of our law, just says to the platforms, apply your content matter ration policies consistently. Have whatever policy you want, but apply them as a Printing Presses and movie theaters about what they show, bookstores, newsstands . Be consistent in what kinds of content you exclude. Could that be done . I dont think so, your honor. And why not . Here, the social media platforms, terms of service, content moderation are part of the terms under which they are offering their service to users. I dont think that paradigm really fits in what your honor is talking about. We agreed, we certainly agree that a newspaper in a bookstore is engaging in inherently expressive content. These social media platform are not like those. I guess the hard part for me is really trying to understand how we apply this analysis at the broad level of generality that i think both sides seem to be taking here. You say what is being regulated here is conduct, not speech. I guess maybe if you were talking about Facebooks Newsfeed feature, but there are lots of other things that facebook does, that might be speech, but there might be other things facebook does that does not qualify as speech. Dont we have to drill down more to figure out whether or not things are protected . Actually, i dont think so. That strongly favors our argument. All you need to look at is whether there are at least some activities. But i guess what im saying is, you mentioned the fair case. We did not say that law schools at as a categorical manner are always engaged in unprotected speech. We looked at the particular thing. The law school was saying we dont want these certain entities in it. I hear you suggesting that we can just say facebook is a common carrie