Moody & Paxton Oral Arguments: What Others Are Saying
On Monday February 26, 2024, the U.S. Supreme Court held oral arguments in two cases that will undoubtedly impact the future of speech online — NetChoice & CCIA v. Paxton and Moody v. NetChoice & CCIA. As I previewed for DisCo, these cases involve laws from Texas (HB 20) and Florida (SB 7072) that would unconstitutionally give government control over what private businesses can and cannot publish online. As such, during the oral argument, Justices were justifiably skeptical of the states’ arguments.
The language present in both bills is overly broad and presents critical constitutional concerns. These laws are currently stayed, but if permitted to go into effect, they would embody striking governmental overreach and a violation of the First Amendment rights of private companies. This is why 44 amicus briefs were filed by over 127 organizations and individuals in support of CCIA and NetChoice.
After Justices inquired about what these cases would mean for internet users and democracy, everyone from journalists to academics weighed in, with many expressing the same skepticism of Florida and Texas’ arguments that the Justices did:
David Sullivan, Founder and Executive Director of the Digital Trust & Safety Partnership, emphasized the breadth of services, not just social media, the proposed legislation would impact and how the legislation would impact companies’ efforts to keep their users safe and maintain trust.
Sullivan stated “Trust and safety teams at ride sharing, food or grocery delivery apps, or dating services need the freedom to set rules for the safe use of their services and be able to enforce against those rules…[T]here are far less restrictive means of providing this assurance than the laws that Texas and Florida (as well as other states) have enacted.”
Ben Sperry, Senior Scholar at the International Center for Law & Economics, focused on the multiple invocations of George Orwell and his dystopian novel 1984 during oral argument. Sperry stated that certain questions from Justices Samuel Alito and Clarence Thomas appeared to suggest that they believe social-media companies do engage in censorship, but they are confusing the right of private actors to set rules for their property with government oppression. Sperry rebutted the Justices’ line of logic, commenting: “Social-media companies can kick you off their platform or restrict your ability to post, but that’s about it. They can’t put you in jail. However much social media is the “modern public square,” it remains private property, and they have the right to exercise editorial discretion. The only thing Orwellian is to conflate this obvious distinction.”
In a live tweet thread of the hearing, Daphne Keller, Director of the Program on Platform Regulation at Stanford’s Cyber Policy Center, zeroed in on Justice Sotomayor’s point concerning the extremely broad applicability of the legislation, sharing an image of the transcript quoting Sotomayor stating: “This is so, so broad it’s covering almost everything. But the one thing I know about the internet is that its variety – variety is infinite.”
Keller noted that the extremely broad legislation begs the question, “If a law seems to mean anything and everything, when does it become the *state’s* job to explain and defend it?”
Following her tweet thread, Keller and Francis Fukuyama, senior fellow at Stanford’s Freeman Spogli Institute for International Studies, wrote a piece on the arguments for the Wall Street Journal. In it, they noted “We certainly shouldn’t want legislators to exert influence through laws that pick winners and losers among lawful forms of speech—as Florida has done by granting special privileges to posts by political candidates and as Texas has done by giving platforms special leeway to act against speech that state legislators disapprove of.”
In a blog post following the argument, Cathy Gellis succinctly summarized the debate around Section 230 when it was brought up during the questioning. Gellis stated “what is at issue in the litigation here is the separate message platforms convey when they allow users to use their sites to spread their messages, or otherwise deny certain speakers or speech. Allowing (or denying) speech amounts to platforms saying the separate message — and their own message — of what speech they welcome. But that speech they welcome is still not their speech, but that of the user.”
Gellis further noted “Section 230 is obviously not in conflict with platforms having First Amendment rights preserving editorial discretion because part of its protection is designed to protect platforms when they exercise that discretion.”
Among other points, an article from the New York Times (NYT) focused on the questions from the Justices concerning services’ potential viewpoint discrimination in regards to content moderation. Justice Kagan asked whether states could tell services like Venmo, Dropbox and Uber that they may not discriminate on the basis of their users’ viewpoints.
The NYT noted that Paul Clement, who represented CCIA and NetChoice, said no, all of those services “are still in the expressive business,” meaning that speech is part of their core activities. The NYT quoted Clement again, noting his argument on viewpoint neutrality: “If you have to be viewpoint-neutral, that means that if you have materials that are involved in suicide prevention, you also have to have materials that advocate suicide promotion. Or, if you have materials on your site that are pro-Semitic, then you have to let on materials onto your site that are antisemitic. And that is a formula for making these websites very unpopular to both users and advertisers.”
The Washington Post summarized the oral arguments in a few simple “here’s what you need to know” blurbs, highlighting the skepticism from the Justices concerning Florida and Texas’ arguments. WaPo observed a critical moment in the arguments where Chief Justice Roberts noted the First Amendment prohibits the government, not private entities, from censoring speech. Clement followed up on this point, stating “If the government’s doing it, then content moderation might be a euphemism for censorship,” however, “If a private party is doing it, content moderation is a euphemism for editorial discretion.”
Finally, NPR commented on the oral arguments, noting a conclusion from Rupa Bhattacharyya, a former Justice Department lawyer and special master for the September 11th Victim Compensation Fund. Bhattacharyya said “nothing — no content moderation at all — is what will happen if the Supreme Court upholds the sweeping laws in Texas and Florida.”
