the world of politics, all at your fingertips. you can also stay current with the latest episodes of washington journal and washer scheduling information for c-span networks and radio. c-span now is available at the apple store and google play. scan the qr code to download it for free today or visit our website, c-span.org. c-span now, your front row seat to washington anytime, anywhere. >> the supreme court also heard oral argument in another case that questions whether states can restrict content moderation on social media. the justices will have until june to rule on this case that comes out of florida. it is about 2.5 hours. >> we will hear argument first this morning in case 22-277, moody versus netchoice. mr. whitaker? >> mr. chief justice and may it please the court.

internet platforms today control the w millions of americans counate with each other and with the world. platforms achieve that success by marketing themselves as neutral ru for free spch now that they sthe communications of billions of users, they sing a very differentun they now say they are inact editors of their users' speech, rather like a newspaper. they contend they possess a broad first enent right to censor anything they host on their sites, even wn ing 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. th iwhy the telephone companynd delivery service has no first moment right to use their services aa chokepoint sence 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 busesof transmitting their users' speech. their users are the one who create and select the content that appears on their sites. the platforms disavowal responsibility forha conduct in their terms of serce thelaorms do sort and facilitate t psentation of user speech. this court just last term in twitter versus tamana describe those tools as a little more than passi mechanisms for organizing vast ou of third-party content. thelaorms do not have a first amendment right to apply eicensorship 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 toe an odd fit because the respondent represents virtually allf e platforms and itou be easy enough for a platform who's affected to init aan applied challenge. would you comment on that? or at asaddress the fact that this is a facial challenge. >> certainly, your honor. i think that's a significant aspect of thisas it comes to the court on a faal challenge whi mns the only question before the court is whether the stu has a plainly legitimatswp. i don't understand the to bmang an overbreadth challenge would relyn e effects on third parties. they are princal relying on the effects tir members if they were bringing an overbreadth challenge, they would have to show serious third-party -- >> how wldhey do that if

when they haven't shown there i no way that this statute c b applied that is consistent with the constitution? have they met that? >> they certainly have not. we think the statute has plainly legitimate sweep. certainly, there are a number of platforms that are open to all comers and content, much like a tritnal common carrier. as a traditional common carrier consistent with the first amendment would be sje to hosting requirements, nondiscriminiorequirements, we think the platforms satisfy th cracterization which are absolutely would give this statute a plainly legitimate -- >> this is such an odd case for our usual jurisprudence.

it seemeli your law is covering just about evy cial media platform on the internet. we have nontraditional social mediforms like smartphones and others who have submitted a cirief telling them that this law could cerhem. this is so broad. it's covenglmost everything. the one thing i know about the internets at the variety is infinite. at one point in a challenge li 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 determinate? i >> >> don't think so, your honor. i stilthk it is their burden as the plaintiff challgi the action to show that the law lacks a plainly legitimate sweep. let me say a word about the breadth ofheaw. the legislature did define the term social media platform, whh is part of what triggers the law's applicatn, but the breadth of that definitio which would not cover every single website, it would cover large wsis with large revenuesnd subscribers and the kebut 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 athe substantive due -- the legislature defined the >> so let's talkbout etsy. that is a marketple. i will try, in some ways it is like aonne bookstore, online magazine, online newspaper, online whater u want to call it, and online supermarket. but it's not, because even though it has infinite space, it ally doesn't. viewers, myself includ, or users, can'acss the millions ofhis that are on the internet and actually get through them and pick the things we want because there's too much foation. so we are limited by human attention span. so are the

but l's look at etsy. etsy is a supermarket that only wants to sell vintage close. it will and does limitse content. it's a free marketplace butt says to theeoe who come onto its marketplace, we only want this kind of product. they are going to have to censor, they are going to have toake people off, they will have to do all the things that your laws say ty n't do without all of these conditions. y is that? why shlde be permitting and under what level of scrutiny would we be looking at this broad application of this law that affectsomne who all they want to do is sell a rtular kind of product, and they have community standards and they tell you they don't

want you to curse, they don't want you to talk politics, ty don't want you to do whatever. all they wanyo to do is sell your produ. but if they are a public marketplace, which they are, this law wld cover them. >> i think that's rit,our 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 t l regulates is the modeti of user generated content. it would only apply to etsy to the extent -- i'm not sure to what extent it would apply t etsy. i guess people are uploading user generated content in connection with the lef goods. it doesn't limit what goods etsy can limit its mkelace two. >>ell, it opens it up for sale of goods.

it says don't speak about politics because that's not what our marketplace aut. that viewpoint discrimination. this falls under a who l of your listings and disclosure requirements. why are we impinthat 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. weaithat they could come, but ifhego inside the sre, we didn't say anything that someone couldn't std a platform in the middle of the store and scream out their political message. we said the common aas where we are permitting others to speak, we will let thispker speak anything he or she wants that's why i'm afraid of all of these common-lawules you are

trying tanogize to. >> your honor, i do think etsy is similar as it is in fact hosting speech and some expression as an incidento some other commercial and provide -- enrpse and that makes etsy's speech interest even weaker. talking about concern about the market power and abilithe social media platforms to control what people do your response to that is going to be resizing the power of the stattoontrol what goes on on thsoal medialatforms. 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 concernedbo that, your hor. what i would say is that the

nd of regulation the state of florida is imposing is one that is familiar to the law when you have businesses that have generally en their facilities to all commerce and conten ts 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 voluntary osen business model, so i think the court should proceed carefully, but one thing that's important to keep in mind is there is a first amendment interest in ensuri that large, powerful businesses that have undertaken to ho massive amounts of speech and have the power to silence those speakers, the sta h a first amendment interest in ensuring the free dissemination ofdeas. >>s there any aspect of social media that you think is protected by the first

amendment? >> yes, your honor. i can certain igine a platform that would be subject to thila tha would indeed have first amendment rights. we point out in our ie that you had an internet platform, that indeed had a plfo driven message was selective on the fron end, democrats.com, i think it would ba fferent analysis compared to a company like febk 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 don't have a lot of rules buth have some rules. we are going to respect the rus ey do have even though they let l of people come in. they don't 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 can't have hate speech. you can't have misinformation with respe tparticular 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 thousas and thousands of employees who are devoted to enforcing those rules . so why aren't they making ntt judgments n quite as explicits e kind in your pothetical, 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. >> there's a l i 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. i'm happy for you to talk about hurley. >> i c 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 rul othe quorum. i think the fact that the platforms have general rulesf decorum, upwards of 99% for all that content moderation, that's a product of t 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 sp fters on the front end and the like. >>ha1% seems to have gotten some people extremely angry. e 1% that's like, we don't want anti-vaxxers on our site or we don't want insurrectionists on our se.

that is what motivated the laws and that's what's getting people upset about them. he people have different ews abouthat it means to provide minfmation as to voting and things like that. that's the point. some sites say this kind of talk about vaccination policy is good and some people can say it's bad,ut it's up to the dividual speakers. >>he fact that some people are angry about content moderation doesn't show thai's their speech. we don't know whether the advertisers think it's their speech or whetr ey just disagree. there are advertisers and people any at speech who don't get a heckler's 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 rumsfelveus fairwood would have had to come out the

other way. in rumsfeld, theawchool felt strongly that the military were inbigots and they did not want them on campus and yet this court did not look to the eological controversy surrounding those decion instead it looked at objectively whether the law schools were engaged in ntly expressive conduct. >> it looked at the factt 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 don't think it has much to do with the issues today at all. >> mr. chief justice, it's difficult to argue with me -- you about what rumelversus fair means. but let me take a crack. as i read your opini, u did not rely othfunding aspect of the case to reach the conclusion tt what w going on was not first amendment protected conduct. u were willing to spot them at

thquestion would be exactly the same if it were a direct regulation of speech as opped to a funding condition. i absolutely think the analysis in that ca dectly speaks to th >> 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 i 1976, a really important sentence in first amendment jurisprudence, the context that the government may restrict the speech of some elements of ciy to enhance the relative voice of others is whly foreign to the first amendment and that seems t be what you respond th to the chief justice. th in tornillo, the court went on about the power o newspapers

and the court said they recognizedheontext about best changes placed in a few hands, the power to inform the american people d ape public opinion. that had led to abuses of as and manipulation and the court accepted all that but still said that wa't good enough to allow some kind of government mandated fairness to apply. hodo you deal with those two principles? >> first of all, if you agree with their frtle position that what is being regulated here is conduct, not speech, you don't 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 voed in those cases, that those cases mean they lose?

no, i don't agree with that. the reason is because the interests that our laws serve our legitimate, and it's hard because different parts of the law serve different interests. i think the one that soundan you're concerned that his most directly implicated would be the hosting requirement applicable tooualistic enterprises. one provision of the law say that the platforms cannot censor, shadow band or deplatform. journalistic enterprises based on the content of their publication or broadcast. that serves an interessilar to the interest that this court recognizes as legitimate intern -- i turner. when congress imposed on cable operators must carry obligation for broadcasters. as a broadcaster, what the cou said was there was not just a gitimate interest in oming the free dissemination of ideas throughroadcasting, 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 pvion 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 ears about what they show, bookstores, newsstands? be consistent in what kinds of content you exclude. ulthat be done? >> i don't think so, youronor. >> and why not? >> here, the social media platforms, terms of service, content moderation a pt of the terms under which they are

offering the svice to users. i don't think tt radigm really fits in what your honor isalng about. we agreed, we ctainly agree that a newspaper in a bookor 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 a the broad level of generality at 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 facebk's newsfeed feature, but there are lots of other thingsha facebook does, that might be speech, but there might be other thgs facebook does that does t alify as speech.

don't we have to drill down more to figure out whether o not things are protected? >> actually, i don't think so. that strongly favors our argument. all you need to look at is whether there are at least some acvities. >> but i guess what i'm saying is, you mentioned the fair case. we did not say that law schools at -- as aategorical manner e ways engaged in unprotected speech. we looked at the particular thing. the law school was saying we don't want these certain entities i it. i hear you suggesting that we can just say facebook is a mm carrier and therefore everhi it does qualifies as conduct and not speech and i don't think that's the way we've done this in t pt precedent. can you speak to that?

>>erinly that's not what we are saying, your honor. i agree it's important to isolate what conduct each particular provionf the law -- >> not the law, the entity. what is the entity doing? we have to do an intersection of what the law says they can't do and what in particular they are doing. >> the level ofenerality that sufficient to conclude if the law had plainly legitimate sweep is we are talkin about the social networking companies activities and content moderating, userplded content. that i think is the relevant activity. >>o what do you do if linkedin has a virtual job fair and it has some rules about who can be involved with mark that seems to map on i think to the fair case. is that what yoarsaying? >> i d't think so.

i don't thk it would m onto our theory in the case. i'm not totally aware of all the facts linkedin. >> i think that's a problem in isase. we are not all aware of the facts. >> exactly. that is one of the reasons why the spatial challenge has been very confusing to defend because we kind of don't know what t defend against. >>that score, we have a bit of a challenge because different legal principles apply in fferent circumstances and there are many different defendants or plaintiffs her with different services s that's a complicating feature on our facial challenge. here's another one for you. what about section 230? which preetsome of this law. how much of it and how are we accounting for that complication ? >> why don't you answer the

question and then we will move on? >> i think the court should answer the question presented a guess. >> but how can we do that witht oking at 230? >> somef this was briefed at the search sge i don'think the section 230 preemption will dispose ofhe case. the district court reached that issue but concluded it still had to reach the constitutional issue anyway. >> i will get back to this in my turn anyway. >> thank you. anything further? >> mr. whitaker, can you give us your best explanation of what you perceive the speech to be in this case or alleged to be in this case? >> ai understand their contention, it is this idea that platforms, in having content moderation policies, areomow

creating a welcoming community, i guess. it seems at that level of generali, seems like a tautology than a message. basillwe want the people on our sites ate want. rtainly the pruneyard case, the mall wanted to create a certain environment and yet the court said that they did not have a fstmendment right to do tt. >> i think what was more interest iis we are using broad terms like content moderation, and throughout the briefs you have shadow bni, de-prioritizing and all sorts of things. i guess with these facial challenges, i always have a problem that we are not talking about anything specific. in thepped challenge, at least we know what's in frontf

us and what your interpretation or the states interpretation of the law is in that case. now we are just specuti as to what the law means. so i'just trying to get more specificity as to what the speech is in this case. that they are censoring and i don't know of any speech interests in centering other spch but perhaps there is mething else. >> i don't think they do have, certainly not a speech interest. at most i think there's inre in the allegedly inherently expressive conduct of speech. we do not thin they have a message in censoring and deplatforming users from the site any more than t l schools in fair had a message booting military recruiters off campus. >> justice alito?

>> did the plaintiff' raise content overbreadth below? >> i could not find the wor overbreadth in any of their pleading >> where in the record should i look to find a list of all the platforms that are covered by the florida statute? >> i'm afraid thadon't appear in the record because i think the platforms are fairly cagey about which of their members they thought the statute applied to, that the record only contai three platform specific dearations. at sea, facebook, and youtube. that's part of the problem in this case, the record has not be fully developed to answer the eson so we a kd of litigating in the dark. this w at a preliminary injunction at breakneck speed without the state having a chce to take discovery. >> i will ask mr. clement that

question as well. as to the platforms that are covered, whe the record what i look to find a list of all of the functions that those platforms performed? >> i'm not aware of an all-encompassing list of all the functions deplatforms perform. there are thr ptform specific declarations and general declarations to ta about members more generally, but it is not sort of the all in one place. >> does your law cover websites that primaly or exclusively engage in non-expressive conduct? >> i think it doecor websites that engage in primarily non-expressive conduct. we would characterize the soci networking platforms engaging in

primarily non-expressi cduct insofar as they are hosting speech just like a traditial common carrier is not engaged in expressive conduct in transmitting communications of its sucrers. we do think the law would apply to certainlyhe largest social networking platforms. >> what is the right standard for a facial challenge if we think your law indicates a percentage of expressive conduct and proportion of non-expressive conduct? how should reanalyze tt -- we analyze that? we need a numerator and denominator. what would they be? i don'thk the standard would have a new minute -- numerator and denominator. we would viewed as whether t statute has plnlyegitimate sweep.

the numerator denominator comparison would be something you would do ithe were an overbreadth claim, but i don't understandy iends to be making that claim. i could not find the word overbreadth in their pleadings. in the texas chere is a note. >> justice sotomayor? justice kagan? >> i just want tunrstand your position and i want to narrow ts to the paradigmatic social media companies, newsfeed postin, facebook, youtube, twitter/x. suppose that i say, take this as a given, you can argue with the fact is, but don't. [laughter] suppose that i say for the most part, a tse places say we are open for business, post whaterou like and we will host it. but there are exceptnso that

and clearly content based exceptio which the comni take seriously. let's y we think that misinformati oparticular kinds isxtmely damaging to society. misinformation autotg, about certain bl health sues. so we also think hate speech or bullying is extremely problematic, so we are going to enforce rules against this. if they will only apply to a small percentage of the things people want post,orhe most part they are open for business. but we are seriousbo those content-based restrictions. so in that world, why isn't classic first amendment violation for the state to come in and say we ar not going to allow you to enforce those sorts of restricon even though you

are basically like in an editorialudgment, you are excluding particular kinds of speech? >> your honor, i take this hypothetical to be assuming it is first amendment protected activity. in that instance, you would have to run intermediate scrutiny unde turner. >> don't say what i take it to be first amendment activity. do you take it to be first amendment activity? no, that's our whole point. >> even though they are saying we are aig forum for lots of messages but not for tseinds of messages, we want to exclude those kinds of messages. why isn't that a judgment? >> the court held otherwise i think in pruneyard because it was an editorial policy about t was just about leaflets and the small owner did not have expressive views.

i'm taking this as a given that youtube or facebook or whatever has expressive views. there are particular trends of expression defined by content that they don't want anywhere ne their site. >> b you still would have to look at the objective activity being regulated, namely censoring and deplatforming and ask whether that expresses th message. because they pose so much content, an objective observer will not readily attriteny particular piece ocoent that appears on their site to some decision to refrain from or sensor or deplatform. this is a real-world example. do you think twitter users one day woke up and founthselves to be x users, and the content le had cng and their feeds changed, d suddenly they were getting a different online newspaper, so to speak, every morning.

a lot of twitter users thought that was great and aot of twitter erthought it was horrible. in fact thereerdifferent content judgments being made thatas very much affecting the speech environment that they entered every time ty ened their app. >> your honor, respectfully, that doenoanswer whether they have a message in their nsship, and i'm sure people objected strenuously to the fa that the law schools were permitted to interview on campus. i'm sure people waedo ban leafleting at the mall in pruneyard andhadoes not give them a message. e reason is if they are not carefully selecting the content in the newspaper, they don't have a message in the mere existence of the content. >> justice gorsuch. >> i just wanted to give you a ance to finish up on the section 230 point.

i think it is section -- that the laisot enforceable to the extent it conflicts with section 230. why wouldn't we analytically want to address that early on in these proceedings whether in this court or the lower court? >> sure, youhor the reason is the law is not preemptive under 230 c2 which regulates takedowns. one reason is we understand 230 c2, not to sanction under the ruic of otherwise objectionable. there's a nice articlen is in the journal of free speech law. we have not briefed this. e second point i would make ou section 230 c2 is it only applies to good-faith content moderation. to the extent our lapribits them from engaging inad faith content moderation, that is no

preempted by 230 c2. onwato understand the constitutionaler in this case is they are in essence asserting the constitutional right to engage in bad faith content moderation because they ready have the right to engage in a lot ofatio of illicit content as long as they doo in good faith. >> to follow up on justice kagan's line of questiongyou have analogized common carriers and telegraphs in particular. whys that an apt analogy here? >> because the principal function of a social media site is to enable communications, enabling willing speakers and listeners to talk to each other. i te the posts are more public,ut don't think verizon would gain any greater right to censor sinc we -- simp bause there was a conference call. i don't think ups or fedex would

gain a greater rhto censor books because there was a truckload of books. so the analogy is at. there's been ta of market power. let's not an emt of traditional common carrier regulation and some entities that are regulated as common carriers like cell phone providers operate in a fairly competitive market. >> justice kavangh in your opening remarks, you said the design of the first amendment is to preventupession of speech. you ftut what i understand to be three keyrdin the first andment, by the government. do you agree by the government is what the first amendment is targeting? >> i do agree t i don't agree there is no rsamendment interest allowing the people's representativeo promote t free exchange of ideas. this court has recognized that as a legitimate first amendment interest in the turner case and

going back to the associate press case. >> in the turner ce,he court emphasized was unrat to the suppression sech so i'm not sure what it is related to ensuring relative voices are balanced out, whether e's fairness in the speech or balance in the speec tt it's covered by turner. do you agree? >> no, ion't. >> wt did turner mean by unrelated and suppression of speech? >> we don't view our law as advancing interests related to the suppression of speech. think the interest in protecting journalistic enterprises from in censored, from msnbc being nsed because an internet platform doesn't like a broadcast it showed on the station the other day, that's just interest in preventing it from being silenced.

it is giving them a chanc. >>n the editorial control point, you want to fight the idea, and i understand editorial control is the same as speech itself and you emphasized pruneyard over and over. but we have a whole otr ne of cases like hurley, pg&e, turner, which mes is protected by the first amendment. i understoodheine between pruneyard on one hand and the cas the other to be whether you are involved in a speech communications business as opposed to a shopping center. can you respond toho? >> i guess i don't dispe the principle of editorial contr. i just don't think social media platforms are engaged in editorial control. e cruiters -- the law schools in rumsfeld versus fehr gu they are exercising editorial control when they booted military recruiters off campus.

this court had none of it. the court does need to aw line i think betweenelective speech that is exercising editorial control and a spch host like a common carrier or like the mall in pruneyard that can be prevented from silencing itcustomers. >> on the selective speech host point, i think you made the into justice kagan they don't eliminate mh of speech, but didn't we deal with tt in hurley as well and say that the mere fact that the organizer usually took almost all comers with the irrelevant first amendment interests and editorialonol over who participated in the parade? >> guess i think hurley turned more the fact that the activity was a st. patrick's day parade with an expressive purpose. so perhapst n be expressive and more lenient.

i would note the court in hle relied on the fact there was front end selection of the members of the parade and the committee that was responsible for it was doing front end selection. i think selectivity is toll relevant to who is the speer and we analogized inhe bef where this court has made the same point in a variety of cas. what you have said is that if the government is not exercising a ton of controov the speech that comes into a forum, it is not speaking. >> thank you. >> mr. whitaker, i he a question about editorial ntrol. when it comes to platforms that are the traditional social di platforms like youtube, instagram, tiktok, twitter/x, it all turns on edorl control. it seems to me when distinction

between this and fair ithat these companies are speech hosts. the law schools in fair were hosting job fairs. they were not gathering a bunch of people d ying present your ideas. these mpies are hosting speech. why isn't that more like newspaper inorllo? >> it is different but tha's why we leaned on the common carrier analogy which i think reflects that a speech, you can't just say it is a speech host and go home. if that were true, viz could censor. >> put aside common carrier for one second. just tell me why this doesn't look like the same editorial control we see newspapers exercise. >> because the plaor do not review -- it is a strange kind of editor that does not actually look at the material that is

going on it's comp -- compilation. they say they did not even know that isis was on their platforms doing things. >> is it because it's t humanized? -- human eyes, not humanized. as justice kagan was pointing out terms of service, we want this kd of site. some say for example tiktok might have boosted pro-palestinian speech and reduced pro-israel speech. that's a viewpoint and if you ha an algorithm do it, is it not spch >> it might be, but in twitter and gonzales, the platforms told you that the algorithms were utral methods of organizing speech likely do a decimal system. >>ut>> that's not what they are saying here. let's assu wt they're saying here, that ey are organizing

it in ways that expss an interest. do you think itou be editorial control in a first amendment sense? >> no. i agree with justice jackson that it is important to separate functions are the organizing function from the hosting function. simply because they are required to host certain speh, that does not meaningfully prevent them from organizing that speech . i think the court has to separa o regulation of the organization from simply prevenng themrom censoring. and the reason, it is different from a newspaper is two principle points. base constraints are somhi that this court in fair and in tornil relied on as one factor that'relevant. social media companies don't have space cstints which

means a requirement to host an additional piece of content is a lavely less -- >> justice sotomayor pointed out even though thereayot be physical space constraints, there are the constraints of attention. they have to psent information to a consumer in some sort of organizeday and there's a limited enough amount of information the consumer can absorb. don't all methods of organization reflectso kind of judgment? could florida enact aaw telling bookstores that they have to put everything outy alphabetical order and can't organize or put something closer to the front of the store that they think the customers wl want to buy? >> let me take a step back. e of the problems is we don't have any informati othe record of their algorithm. it's difficult to pick apart what the algorithms are doing. you could imagine an algorit

that could be expressive. if thelgithms work in the manner that the court described them in twitter versus stamina, they look le neutral ways to reflect user choice and i don't think that's expression. if it were possible to have an algorithm making a websi lk like a newspaper, it would be different. the question of organization is analytically distinct from the separate question of whether they can beegulated. >> so your argument that it's not expressive entirely defends -- depends on the hypothesis that theorng and speed functions are solely aeual algorithm designed to user preference and reflect no policy judgment based on the plfo itself? >> no, not at all actually. i think preventing them from censoring does not meaningfully eclude them from organizg. if they are required to carry a piece of ntt, they can

organizet wever they wt generally. there are prohibitions on shadow banning and the like but they caorganize it however they want. the prohibition on censorship and deplatforming is not meaningful interferenceit organizing. on algorithms, i would stress that this is a facial chalng we don't have any particular information on what exactly the content of their algorithms are, so the only question is whether there is a possible state of the wod under which rhythms are nonaggressive. >>et's ask about the facial challenge aspect of this. florida's law is very broad and we are talking about the classic social media platforms, but it looks to me liket uld cover uber, google search eines, amazon web service, and that would look very different. justice sotomayor brought up at sea. etsy has a feed recommend f

you but also has handmade goods. it looks more like a brick-and-mortarartplace or fleark than a place for hosting speech. ifhis is a facial challenge and florida's w is broad enough to cover a lot of this conduct which is farther away from expression than the standard social media platform, whdidn't you than in your brief defend it by pointinou that there is all this other stuff perfectly fine that florida covers, we don't want a person wants to sell her goods on etsy t be suppressed, because it is handmade goods that express a political view for example? >> i think we did defend the application of the law to etsy -- >> i can s tre and think of all kinds of applications of t law that would not hit expression, but i don't

understand you to have been defending the law in that way as opposed to countering the argument that e platforms are not engaged in expression. >> we are making both arguments to be clear. we view etsy as not having a significant expressive interest in applying its content moderation policy -- >> is that enough to make the whole thing fail? ife agreed, ets it's fine, for google or amazon web service, it'sin is that enough to say the facial challenge cannot -- >> yes, because that would give the law legitimate sweep and that's all it would need. >> i feel like there's a lot of indeterminacy in this set of facts and circumans as justice ato try to illuminate th his questions. we are not quite sure who it

covers, not quite clear how t platforms work. one of the this wanted to give you the chance to address is the lack of clarity about what the statu nessarily means. you've talked about the coistency provision for example and represent wt you think it means, but we don't have a ste court determination interpreting that provisio d we? >> the law was not allowed to go into effect so the florida courts have not had opportunity to construe the stutat all so think the council is strongly in favor of rejecting the facial chaen. in the washitostate grange case, the fact that the ste courts have not had an opportunity to construe state law being attacked on its face as a reason to reject -- >> do you think the statute could be susceptible to multiple interpretations? i can imagine even the consistency provision, what does

it mean th he to do this consistently? they he to apply the same standardsr bstantively result in the same level of preference? i can imagine you could interpret that more narrowly or broadly. >> there may be interpretive questions. on that point, i don't think there is any ambiguity. thprision says a social media platform must apply censorship, deplatforming and shadow banning standards in a conste manner among users on the platform. those standards arehehings that the social media company mu, der a separate provision, publicly dclose, which was a disclosure reirement the 11th circuit held. >> yes, i appreciate tha florida's position on the law is perfectly clear. >> but i think that language is clear that the baselinfo comparison is not an abstract

notion of fairss >> ok, so let me ask about that. we get to the point that we disagree with -- disagree about whether -- we are trying to determine which standard applies, the level of scrutiny. but i'm a little nfed about is how we evaluate the 30 day reriion with respect to detein wther it is content-bad content neutral. i appreciate that on its face it doesn't point to a particular type of content, but i suppose it'applied in reference to content? that restriction is regulated and can only be in terms engagements every 30 days, but we have to look at what it was before and what is now to determine if there was a chang is that content-based or not? >> certainly not.

in the city of austin's se the court held that because a regulation requires consideration content does not make it content-based. there's nothing on the face of that provision that targets any particular message of the platforms. to zooouon the 30 day provision, that is really an jut to the consistency provisions i understand it. the point is it would not do much good to require the platforms to apply policies consistently if they could just sort of constantly change th. >> i understand, but in the application of even the consistency provisions to teine whether they are not doing it consistently, aren't we also looking at content to some extent? i think 's not necessarily as easy as it might seem to determine whether or not these provisions are content-based or ntt neutral. >> i don't think the cthat it requires consideration content keit contest --

content-based. provision for that your honor. >> thank you. >> thank, counsel. mr. clement. >> mr. chief justice and may it please the court, florida's effort to level the playing field and fight the perceed bias of big tech violates the first amendment several me over. it intviers with editorial discretion, compelspeh, discriminates on the basis of content, eaker, and viewpoint, and it does all this in the me of promoting free speech, but loses sight of the first principle of the first amendment, which is it only applies to state action. florida fes its law as you heard this morning priiply by insisting there's no expressive activity being regulate that blinks reality. this statute defineshe targeted websites in part by how big their audience is. it regulates the content and display of particular websites

and trs preventy ients from censoring speakers in content. if you're telling the websites that they can't censorpeers, you can't turn around and say yoarnot regulating expressive activity. it is all over this law. that brings it squarely within the teaching of tornillo, pg& and hurley. all three of those caseseach you cannot hav forced dissemination of third-party speech and they reject considerations of market power, misattribution or space constraint. re and 303 creative make clear those principles are fully appliclen the internet. inde gen the vast amount of matealn the internet in general and these websites in particular, exercising editorial discretion is necessary to make the websites useful for users and advertisers. the closer yolo at florida's

la t more problematic the fit endment problems become. it singles out particular websites in plain violation of minneapolis star. provisions that give preferences toolical candidates an journalistic enterprises are content sein the extreme. i welcome court queio. >> mr.lement, if the governme did what your clients are doing, would that be government speech? >> it might be government speech, but i think it would be unconstitution gernment speech with the government is doing is exercisi etorial discretion to censor some viewers or some speakers and not others. i thk at plainly violates the first amendment andhat is the thrust of this court's decision in the manhattan community cable case which is

that in this area, lookg for state action is critical. there are things that if the government does, it is a first amendmen problem and if a private speak does, we recognize that as protected activity. >> c you give me one example aase in which we have said the first amendment protects the right to censor? >> i told know that the court used that particulalotion, but i think that is the thrust of hurley and pg&e, that is the thstf tornillo. and all those cases, a private party did not want to convey and disseminate the speech of a third-party. in every case, the govnmt said we have a really good reason why this private party has dseminate the message of a third party. >>'ve been fortunate, or unfortunate to have in here for

most of the development of the internet. the argument uer section 230 has been merely a conduit. that was case that back in the 90's anderps the early 2000's. now you are saying that you engaged in editorial discretion and expressive conduct. doesn't that seem to undermine urection 230 arguments? >> with respect>> justice thomas, obviously you were here forllf it, i was not here for all of it, but my unrstanding is my clients have consistently taken the position that they are not mere conduits in congress, in passing section 230, looked at common law cases. if you are a mere conduit, it means you are free from liability, but if you start becoming a publisher by keeping bad content out, you no longer

have common-law liability protection. as i understand 230, the whole int was to encourage websites and other guted parties to essentially exerce itorial discretion and keep the bad stuff ouofhere. as a result, what congress said is, they did not say y a still conduit -- conduit. they said you will still be treated as a publisher. congress recognized what clients were doing which would look like publishingand wanted to protect them against that to encourage them to take down the bed material, that if these laws into effect, would be forced to convey on our website. >> can i ask you about the cials nature of this? my understanding is that to strike dn the statute is unconstitutional, then we would have to conclude there's no possible way for the law to

govern these entities and their conduct. >> with l e respect, i don't think so. the question is whether or not e statute has a plainly legitimate sweep. if there's onlile application, that's enough to vehe statute. >> but whose burden is that? i thought it was ur burden to say this statute and aosall of its applications would be unconstitutional in order to get it stricken. >> i think it would be our burden to say the statute does not have a plainly legitimate sweep. it is our position, and we did make this argument below, this statute has no constitutional applicatioan part of that is cae none of the statute, none of the part that's in front of you today, applies unless you are a covered website. >> i do't understand, i'm sorry.

no application, but we have so many different applications of the law for cicely because it is so broad. how can you sath? >> because the statute only applies to websites that are a ndl of websites that meet the viewership threshold or totasas threshold. it is not the ly argument, but one of our arguments is you can't regulate expressive activity -- >> does the florida law cover gmail? >>he florida law i think by its terms could cover gmail. amendment right toeak tuckert carlson's or rachel maddow's gmail accounts, if they don't ree with his or her viewpoints? > they might be able to do

that. that is obviously not something inhe square focus of this litigation, but lower courts -- >> ith don't, how can we dge whether this law satisfies the requirements of either sa lerno or overbreadth? >> i think it is the plaly legitimate sweep context. students -- sin t statute applies to gmail, if it applies all, because it applies to google which qualifies over the reshold. it does not apply to competing email services that provide identical services. that alone is enough to make every aspect of the statute uncutional. >> how can that be? it is not unconstitutional to stinguish on the basis of bigness. >> it is when you regulate expressive actit the statute applications. >> you are saying, if the re

no issue here that this is really a subterfuge, thewe trying to get at a certain kind of media company, because of their viewsanthe only issue wast not worth it to regulate a lot of small sites, you know, we only want to go after the big sites that actually have many millions of users, you think that is a first amendment olion? >> i do the way you are asking the question, it suggests that is a harder case than the one i have behind you. >> it is impossible to say you cannot go after big companies under the first amendnt >> all you have to do is go after all social media websites or all websites. you don't ve to draw artificial distinctions. that just so coincidentally happened to coincide with the websites you think have a bs you are trying to correct. two remind you -- >> and i took that out of the question. say they were not going after

these companies because of bias or they thought they had slant, it was just going after the biggest companies because those e e companies with the bigges impact and the most users. how could that be a first amendment violation? >> because minneapolis star ys it is. because writers project says it is. and because if you got to into lyng so-called consumer protection interest, the consumer protection interest would be the same for a website with nine 9 million global users as it woulde th a website with 100 million global users. i think there are red flags erl of the distinctions drawinhe statute. if y look at the statute more closely, my goodness. the political candidates provision says y cannot have posts about a political candidate. i cannot imagine anything more obviously content-based than that. >> is there any aspect of the se provided on the social platforms that is not protected

under the first amendment or th is plainly bound under the first amendment? >> i think it is all protected. >> direcmeages? >> direct messages are protected unr the first amendment. the cots that have looked at things like whether gmail is a common carrier have actually felt -- there's a case i involving the rnc that has a spif holding that gmail is not a common carrier. ch of the logic would apply to direct messaging. obviously if this were a statute that tried to address my clients only to the exte ty operate at the job board, this would be closer to fair and i would have a harder case. >> the government says your reef sometimes errs in to adjusting conduit type activity is always expressive d rect messages, gmail, i take it your view is that provirsan

discriminate on the basis of political views, religious belief maybe even race? >> you have to distinguish between two things. one is status based discrimination. the other is status as speaker. i do not think ourlits could discriminate and say, you cannot be on our service, you cannot get access, on the basis of race. >> but how they use it, and their speech. the content of their speech. itas something to do with religion or politics or race -- you can editorialize and use that editorial power to suppress that speech, right? >> that gets to a very hard question. i think it would be speech. >> so thaner is yes. we can deletemls, delete direct messages and we do not agree based on politics, religion, re. probably not in application. a bookstore if it wants to have a display this month to celebrate black history, can

th limit the display just to african-amic authors? probably yes. >> so it is here too.. >> the is at least first amdmt activity going on and you would apply the full protectionlae to it. you would decide whether that is permissible or not. obviously i think this case involves editorial decisions, at its heart, and one thing i want to make clear on the facial challengpot to understand how the case came to be, as you heard today, my fends principal argument is this does not cover activity at all. when we sought a preliminary injunction, the lowe court put all their eggs in that basket. they said we do not nt to scrutiny at the preliminary injunction stage. we only ha the argument if you ldhat this is not expressive activity. th did the same thing in the 11th circuit. have a footnote making clear on the pesxactly where they

did this. they basically said wt to win this on the threshold question that this is not expressive activity, or we do not want to get into the rest of it at this point. we will have discovery a will have the preliminary injunction. >> doeflorida law apply to cuba? -- tube -- to uber? >> it would seem to. >> so it is ok for your clients to discriminate on the basis of viewpoint in email services or long direct messages. messages from one facebook user to another. on private facily. how about ur discriminating on thbasis of viewpoint with respect to people that drivers will pick up? >> i do not think that is ok. i do not think uber is interested in doing that.

the way the statute would define it would b cmes if uber -- betsy, it is the same way -- etsy, it is the same way. you have the ability to put comments on the seller . etsy does not want certain commentsn at. they want can that up to be a place for people to come look at materials. when you think about applications of thistate to some of the thgshat seem less obvious, it is really focused on that expressive aspect of it. obviously the core of the statute, the motivation for th legislation, the examples my friends from florida include in their own peti appendix are about more expressive activity by youtube and faco's of the world, excluding certain speakers, and they want to override the classic edito decision. >> one of the things t hard for me about this case,

let's say i agree with you about facebook and youtube. those social media platforms. don' we have to consider these questions justice alito is raising about uber and at -- and etsy? it make me nervous, i'm not sure i agree about gmail. it is not obouto me anyway that they cannot qualify as common carriers. >> i agree you doot want to decide all of that today but th inot here on final judgment. it is here on preliny injunction. the questions, do you want this law with all these unconstituon applications and by every floridian, these provio enforced byve floridian being able to go and get $1000 cil penalties, do you want that antithetical under the first amendment to go into effect while we sort out

interior questions? do you wanted to be put on hold while we can litigate this stuff and it turns out there's a couple applications that are ok or somebody wants briefing just on the question of whether direct mail is a common carrier? >> is that? >> absolutely you can escape that posture. you affirm the preliminary injunction which is in place, if u nt to you can point to the clear litigation judgment florida expressly ma below, which is, we are not going to get into the intermediate scrutiny stuff. we don't want rord. we are going to put all our eggs in the expressive activity basket. they couldn' have been more clear about thabew and in the seventh circuit. you s this law which has all the firsamdment problems, we are going to put on hold and then we can sort out -- >>at is the case, to what extent is it the result of your own litigation decision?

you could've brought as applied challenge limited to the plfos you want to talk about, facebook and youtube. but instead you brought a facial challenge and you claim it is also susceptibleo alysis under overbreadth. you hatohow you had a probability success on your facial or overbreadth challenge. you cannot now shift and say it was a good preliminary injunction because it is fine applied to the platforms i want to talk about. let's forget about the other platforms that might be covered. >> first of all we did all of that and we won. second of all- >> did you bring an as applied alnge? n because we think this statute isnconstitutional in all its applications. >> exactly. you suggested it could be shorted out on remand. but on remand it istl a facial challenge.

>> it is sll facial challenge. you are right. >> you think all the applications are unconstitutional. >> i do. definitionarproblematic. it is done. if you should prevail, under preliminary injunction, for practical purposes, it is finished. there's no opportunity to sort ouanything on remand. >> there's the whole merits. we've shown the likelihood of success on the merits. we have not won on the merits all or nothing. >> can i try another way i asked what was the standard and you are sayg you think all applatns are unconstitutional, which i think is to establish. if we come up with some scenarios in this context in which we can envision it not unconstitutional, why don't you lo? >> that is not the standard with all due respect. this court has never applied the salerno standard in a first

amendment send this would be the worst inhicourt's history if you started down that road becauseou can always put merovision into a statute that is innocuous and say the's a couple of fine things in there. you look sectiobyection and the sections are pernicious from person admit standard. -- from a first amendment standard. there is no constitutional application to that. >> so i understand precisely, your position is that the only issue before us is whheor not the speech th iregulated qualifies as -- not to beg the question. the expression that is before us is not speh. >> that is one way to put it. yohave questions presented, you're going to be able to decide whenever you think is fairly included. i'm pointing o as an artifact of the way my friend litigated this case you do not have a record on ytng that maybe interesting for intermedia scrutiny and it is not my fault.

it is based on their representations to the courts below that they did not want to get to intermediate scrutiny. they wanted to tee up expressive. >> could you articulate what you think is the appropriate standard ino salerno? >> it is whether the statute has a plainly legitimate suite. >>ou you again explained to me why if you win here, it does not present a section 230 problem for you? >> if we winwevoid section 230 problems. the reons the 230 is a protection against liability. is a protection against liability because congress wanted us to operate as publishers. it wanted us to exercise editorial discretion. it gave us liability protection area the viability protection

d rst amendment status do not go hand in hand. i do not think the parade ornizer in hurley was responsible for parade floats that went into its parade. historically, news stands and others areotesponsible for the materials. i do not think you have to say it is one or the other. the 230 protection stands alone. >> what tt you are editing out that fits under section 230? >>t depends isome cases. it is terrorist material. other cases it is kids telling other kids you should do this tide pods challenge. some cases it is kids that are encouraging other kids to commit suicide. there is a whole bunch of stuff that we think is offensive within the terms of 230 that we are ercing editorial discretion. >> 230 does not nessarily touch on offensive material. it touches onbscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise

objectionabl >> that last one. >> well. [laughter] >> we can ve fine debate about the last sort of -- how muchf that, what is the latin, the company you keep? we can have that fine debate in some other case. >> they use them on doctrine, d a lot of work. let's put that ade tell me again, ectly what the expressive conduct i that for example youtube engag in. i'm sorry, twitter, e platforms -- twitter deplatforms someone. what is the expressive content and to whom is it being communicated? >> when ty deplatform some buddy for violating terms of use or continuing to post material

th vlates the terms of use, they are sending a message to that person and the broader audience -- >> how would you know someone has been deplatformed? >> you do get a notice of that. >> i mean the audience. other ppl >> they are going to see they are not there anymore. >> they did not want to be there anymore, they are tired of it, they are exhausted. >> here is the thing. the message is going to be carried over. this is not just ouwho gets excised from the platform. it is what material people see onheir indidlized, when they tap intfabook or itr or youtube. at they are not going to see is they are not going to see material that violates the terms of use. they are not going to see a bunch of material that glorifies terrorism. they are not going to see a bunch of material that glorie suicide.

>> is there any distinction between action or editing that takes place as a result of an algorithm as opposed to an individual? >> i don't think so, your hor. these algorithms do not spring from t either. they are essentially compete or programs designed by humans to do some of this itorial function. what do you do with deep learning algorithm which teaches itself and has very little human intervention? >> you still had to have somebody who created the universe the algorithm is going to look at. >> who is speaking? thalgorithm or the person? >> the question in tseases would be that facebook is speaking because they are the ones using these devices to run their editori dcretion across these massive volumes. e ason they are doing thi and of course supplementing it wi ls of humans asel but the reason they have to use the algorithms is the volume of material on these sites which shows you the volume of editorial discretion.

>> sorry to keep going. exactly what are they saying? what is the algorithm saying? i don't know. what is it saying? is ia nsistent message? usually when we had hurley, it was there parade and they did not want certain people in there parade. you understood that. what are they sayi he? >> they are saying facebook does not want pro-terrorist stuff on our site. >> we are notaing about terrorists here. those are not terrorists. >> we actually are talking about terrorism here. the laws go into effect -- i thought that was a climb. as i understood florida, they said one provision in the access , nothing that is inconsistent with section 230. it is consistent with section 230.

there are things, if you have a video ohoto build a bomb to blow up ahuh or something, they maybe that is prohibited by something,heind of illegality provision. if there is somethg orifying the attacks of october 7 and one of these companies wants to to keep that off theitor there is something on their that gloriesort of incredibly thin teenage bulimia and the want to keep that off their site , they he e right to do that and that is an important message. like in hurley, the message they are sending is about what they exclude from their forum. >> justice alito? >> there's a lot of terminology bouncing aunin these cases. out of curiosity. one of them is content moderation. could you define that for me? >> content modatn to me is just editorial discretio

it is a way to take all t content that is potentially posted on the site exercise editorial discretion in order to make it less offensive to users and advertisers. >> isn't anything me an a euphemism for censorship? let me ask you this. if somebody in 1917 was prosecuted and thrown in jail for opposing u.s. participation in world war i, wath content moderation? >> if t gernment is doing it, content detion mighte a euphemism for censorship. if a private party is doing it, conten moderation is a euphemism for editorial discretion. there's a fundamental difference between the two. >> for editorial discr are you affirmatively say never mind. no further questions. >> justice sotomayor? >> i'm trying to take all this in. i think i came into this very

ffently than you have. i came into this thinking there are different functionati with websites. so se st news feeds, facebo. some post like justice barrett was talking about. others, gmail or -- where they are just letting people contact ea oer direct messaging. i was thinkin this law seems cer all of that. iso broad. ght have some plainly legitimate suite. it might be ok to require direct messaging to give you notice, to be consistent, to pay attention

to thirty-day risation. some of these provisions mht be ok for those functions. you are saying to me that is not true. can you articulate very simply -- very succinctly why you think at this stage on a facial challenge we can say there is no plainly legitimate sweep with this particulalaafter we sort it all outel, we will still survive? i think the court below says if you try to take that out from justice hagan's answer -- justice kagan' answer, maybe i don't want to. it becau ts was passed with discrimination in mind? th iwhat the court below say. >> the court below said that and that would be sufficient basis. the law is also shot through with content based provisions. i think that is enough to take out the law. every provision we challges speaker based iitlimited

reach. wi this court's case is saying, includg f leppard -- including nifla, u can see if speaker based prosis are infused with viewpoint's termination or other discriminatory influences. if youo at here, you don't veo get past the governor's official signing statement to understand the restrictions on this statute. it is one thing to say they are only getting the big companies. when the governor is telling you a going after the viewpoints of the silin lley oligarchs, all of a sudde limiting it to the biggest companies starts to tell you th itargeted like a laser beam at the cpanies they do not like the editorial discretion that was being exercised. >> justice kagan. >> let me ask the same kind of

question a different way. suppose that instead oth law , you had a law that wasoced , it excluded the kind o curated newsfeeds. ere your argument about editorial discretion lees out. th law did not touch those. it said wi rpect to gmail and direct messaging and venmo and dropbox d uber, all of those things, a site could not discriminate on the bas viewpoint. just as may be a site could t discriminate on the basis of race or sex or sexual orientation orhahave you. so it just added viewpoints to the list. wouldn't that be all right? >> i actually don't think it would be. all of those things are in the expressive is this and -- >> suppose it did not say

viewpoint. it would just say you cannot discriminate on the basis of the usual protected characteristics. is that all right? >> that would probably be all right but it would n se the whole statute. >> that is just on this. it is stute about -- it excludes youtube and facebook. the facebook newsfeed. direct messangthen mow. those kinds of things -- we are not going to let you exclude on the basis of race and sex and we are also notoi to let you exclude people on the bas of viewpoint. >> i don't think the first part of that statute my clients would even challenge. whether there is an abstract first amendment right to have a black authors table for black history month -- >> also viewpoint. >> when you throw viewpoint in would have to ask my clients whether they challenge that but that is not the statute we have

here. >>ha i'm saying is in part it is the statute you have here. that gives you your plainly legitimate suite. when you run a service when you e not speaking, unlike a facebookeewhere you are -- your editorial discretion argument is good because the platform is engaged in speech activities. when you are running vmo you are not engaged in speech activies when you have to serve everybody irrespective o whether you like their political opinions are not , it seems you have a much less good argument. but this statute also says that doesn't it? >> not really. we are in danger of losing sight the actual statute. let me take you to index 97 a and the definition o censor. it includes any action ten by

a social media plot froto restrict, edit, inhibit publication or republication of, suspend the right to post, remove or post, add addendum to any material posted by a user. the term includes actions to inhibit the ability of the user to be viewable or tect with another user of a social media platforms. censor is all abouthe activity. they give essentiay litical candidates and journalistic enterprises a right to nondiscrimination so they are going to pop uev though -- i have no interest in politics. i just want to look at feeds about aln bicycles. i'm still going to get floor to politicians? thats at the statute does. you go through, shadow bd -- shadowban is all about content. journalistic eerises get pride of place. then there is how you display e content. maybe the 30 day provision you cod sort of y at applies

to uber. even then if uber wants to change cment policies because all of a sudden they did one thing t to deal with one set of issues and a problem comes up and there is a whole bunch of people using the comments in a real wrd way -- rude way, why wouldn't they change the ediri policy? i don't understand. and theutto explain provisions? they are all driven by decisions toxclude conduct. -- content. that happens a billion tes quarter at youtube. it is a crushing blow, it has nothing to do with the other things you're talking about. >> t you. >> justice gorsuch. justice kavanaugh. >> to pi u on the word censorship because it is being used lots of different ways, when the govnmtenrs, the government elus speech from the public sare, that is obviously a violation of the first amendment. when a private individual or private entity makes decisions

about what to includendhat to exclu, that is protected generally, etoal discretion. even though youou viewhe private entity's decision to exclude something as, quote, prate censorship. >> absolutely. that was the thrust of this court'desion in halleck. the earlier case may have been incomplete lead different if that was an official city of boston parade. the city of boston decided to exude the group. the reason the case came down the way did unanimously is because it was a private organization exercising its first amendment right to say we don't want this in our parade. >> how does 303 fit in? >> 303 is further evidence -- obviously where 303 is most relevant is that colorado in that case tried to rely on fair much the way my friends here

rely on fair and this court made clear i three 03 creative. this is expressive activity. the fact that my friends best case is fair just shows how radical this statute is. this targets expressive activity in itsor the amendment said to thla schools you have to give militaryqu time in the classroom, the case would've be 9-0 the other way. th is what florida is trying to do. >> on the procedural posture, this is important to tryo understand what is exactly before us. you gotten questions on this. i want to nail it wnor my benefit. you said that ty me in and deposed the pi -- and oosed the pi >> that is accurate. depending on the context of how chiscovery we are going to have.

in that context, we are kinda rested on this. that would limit discovery on both sesnd tn in the 11th circuit -- we are not really going to engage on immediate scrutiny at all. >> it esarget expressive activity. we affirm in this case was left to happen. that means you can't go anyplace for the next year or two. >> there will be litigation. past the point when we can amend. i suppose we can do that. the litigation will go on. otherwise there would be

diovy. essentially the whole nine yards. can't emphasize enough all of that. course if it came back to us. and what will happen -- you have alluded to it. i love tt have heard much about what you are concerned about. quick sweet ndf have to fundamentally change our business model. each company will make their own judgment about how they will come into compliance. th say this will promote speech. this will discrimina othe

basis of content. what we might do in the interim is less do only puppy dogs. until we can get this straightened out. these same companies are getting hammered. these laws me impossible untiweake so much material off of our sites that we say we are not be inconsistent " what do you think the work consistency entails? >> it is not part of the port -- pulmonary injunction. targeting editorial discretion. i have not met anybody who

thinks the near times is 100% nstent in his editorial policy. i think it would be the most obvious violation. >> thank you. >> le's assume i agree with you about this.

possibility to modi t pulmonary injunction. when the lower courteeall the details, they might not have the same skepticism that you startewi. there are lots of ways to writ the dision. what is in place right now is a pulmonary injunction for the benefit of my clients. the statute in theory could apply to them. it is going to be powerfully effective in terms of how this

case gets litigated in the district. >> i just want to push back little bit on private versus public distinction. i think we agree that the government would make editorial judgment about what they can say in the public square butha you do with the fact that t internet is the public square? i appreciate that these companies are private companies but if the spchs occurring in this environment -- why won't theonrns about censorship apply? >> i think censorship is only something the government can do the. it is not -- it is just a category mistake but you ulworry about this if websites like the cable companies in turn has some sort

of control where they could limit your ability to go to some other website and engage in speech. the way bses worked - facebook could limit you to only 19 other websites. cebook could dictate which 20 websites you saw. this would be a lot more like turner. this court said that the internet is likehepposite of turner. there is so much information there. iso relatively easy to have a new website,. reality tells us that. x is not what twitter was. tiktok came out of nowhere. >> i think i get your point. let me ask you about the legitimate sweet point. what is ilgimate about a government regulation that

attempts to wgh this companies to apply consistently their procedures? i guess i don't understand why these anti-discriminate and princiesre legitimate. >> consistency ia government mandatehen what is being regulated is expressive acvity. a clear first amendment violation. some of these judgments are very tricky judgments. we will take some of the stuff, celebrating a seventh off. >> what about a straightfoar one? no candidate can be deplatformed. that seems pretty straightforward. >> right.

if somebody is a candidate for office, they can't be deplatformed. >> that means they can't be deplatformed matter how many times they viotey clients terms of use. we still have to carry it. not just carry it but we have to ve it pride of place under the statute. this gives a license to anybody even if there is somebodwhis only going to pull 2% i their local precinct, they can cause uso fundamentally change our editorial policies and have to ignore our terms of use. >> thank you counsel. >> mr. chief justice and made plea court -- the fit

amendment protects entities that re, arrange and present other people images and expressive coilions. if this is uphill, those parade sponsors and web designers -- it also covers social media platforms. those platforms shape that and that expresses activity taken by the firsamdment. that does not mean every business thatramits speech can claim first amendment protection for that conduct. companies that carry speech from point a to point b are not shielded by the service. that is because they are not producing any expression of their own. it is not because there are some ki of communications company exception. none of this is to say that social media platform's army from regatn. governmes have an important test in facilitating

ucion. governments have to ayithin the bounds of the first amendment. this is all to resicthe speech of the platform to be sure that theois of some users don't stand scrutiny. correctional your sending regulations. but if the u. government did extl what these respondents are doing, would debbie government speech? >> and just getting the hypothetical cracked. you're suggesting the government se would allow users to post messages on that. the thing that would implicate his first amendment wasecse the government might be creating something like a public forum -- antic they would allecsarily qualify.

the critical difference is these platforms are private parties. >> mr. clement said the difference is thatf the government does it, it is censoring. if a private party doesn't, it content moderation. his ehemisms bypass me sometimes or elude me. do you agree with th distinction? >> yes. the critical difference is the government is bound by the first amdmt and they can dictate wh kind of speech has to appear. that could create a first amendment violation but he i is a private platform that they're making atxpressive choice on. they are creating their own expressive product idog so. there are websites featuring

text elements, photos, videos and platforms which are private parties not fod the constitution are looking at how they want that to look. that is an inherently expressive activity. the kind of content they think might be harmful. there none single message that each platform can sustain. least it seems like their content moderation policiesnd body adjustment. there is still the baseline of

sign >> you indicate that the net choice sometimes as by suggesting the disseminationf speech is always expresse activity. i do wonder how we are supposed to do thhat fact in this spatial chlee context? paicarly when many of the platforms prohibited various kinds of posts. even if the platrm disagrees and they say they do not endorse and are not responsible -- it's her -- it sure sounds a lot like

ndt. >> the kind of company that is literally engaged in carrying speech, transmitting it. a big difference between that and with the conduits are doing heres there really facilitating users ability -- instead they are taking that and arranging. >> they are promising you get t express reviews freely. >> and they are representing th yr views don't represent theirs. nobody understands that. this is a atl challenge again. >> i think looking at the terms of service, it is certainly true

that many of the platform ha generallyndicated they welcome of wide variety of views. it would be incorrect to say they are holding themsels t for all forms a possible speech. thste laws are narrowly targeted on the kind ospch the platforms what to include. because those t stion 230 things. after that, they do seem to promise a lot of latitude. when you look at class common carriers, it is very similar. certain speeds that might detrimental to their business. it hds true for telegraph center holds true for telephones. beyond that they're minimum,

they are open to all comers. that seems to be have a lot of them are representing themselves. >> they are not creating any kind of expreson to each product in providing their service. it is a government regulation. request for telegraph companies are just the opposite back in the day. quickly they curated alarm speech or tried to. a lot of political speech they did not agree with. wtever euphemism one chooses. >> that is the difference here >> if the expression of the user is there, where does that leads

in -- where does that leave section 230? i understood justice thomas was king this point. we are not going to treat you as publishers so long as it is t your communication oy. if it is now their communication in part did they lose their 230 protectis? >> n erare the individual user posts on the platform and that is what 230 said, that the platforms cap you have the -- held liable for it. let me interrupt you class and i

think there's any basically compelled -- basic incompatily. >> is the whole premise that they a cmon carriers? that they will not be held liable in part because it is their expression? they are a for somebody else? >> to the extent that the stas are turning this into an argument. that the platform's are not publishing and speaking re there would beo need if that were the case. >> congress recognizes that ty are factually publishers and coress wanted to grant them immunity. that is the whole point of the good samaritan blocking provision. >> there has been a lot of about the case -- how it was

litigated. what is available if it goes back. i would like your views on tt. >> we presented our argument in this case ligating at face value. that meant they treated th l as if the central provision is focuseonhe true social media platforms. the website you have in mind when i use that te sms like you to and facebook. this law is not of regulation of their speech at all. i understand the force of the esons the court has been asking about ifhere are other types wsites that may be covered? we don't real he a dog in that fight. there are other applications of e law out there. to justice barrett'sueion, which of the court do with this? ligated one way and then it

looks like there are possible applications you wou he in mind. i would urge the court to take over thearw approach here. they could control what the true social media platforms are doing to their expressive webses companies like uber which don't seem to be creating a possible type of expressive product. while looking t decision on the record that was created. i am baffled by your answer to the chief justice. did ford argue a preliminary injunction should not be issued? plaintiffs have not shown that they were likely to succeed on their facial challenge?

did they not make that argument? >> they made it but they did not go further and say and the reason for that is because it is direct messaging. >> tnk it would be hard for the court to figure that issue out. >> it may be hard for us to figure out what my question was is the iss before us question mark >> i think the y rward to litigate this case is to say the issue is proper for you. there is no urin this case that considers questions about other types of platforms or other types of functionality. request the record is insufficient to allow us to comfortably decide whether the overbreadth standard is bad. isn't that the fault of the plaintiffs? isn't the remedy to vacate and

remand for all that to be fleshed out? i would not say athing is a certain about what would happen in the near future. itould be litigated and perhaps it would develop the record in a way that f t they should. a list of alternate choice members recovered byhi all the functions they performed shows whether it was nstutional in every application and scope thais constitutional. >> i don't want to resist the idea and affect the analysis of the facialhaenge. i don't want to stand in the way of that.

with the court making clear that rick -- with respect to the lower court, mainly thede that they can control the cremation and editorial function with respect to their expressive product. that is a tempor provision that is valid in all of its platforms. >> could i ask you to comment on a few tng >> inderstood him to say that email functi cld be denied on the basis of accesso at. direct messaging can be denied on the basis request we digr with that. >> the direct messaging and email service seems like the premierramission of communications. we will think that is an inherently expressive product. it has a newsfeed and it is

curating more than decidi h to prioritize. >> d't think that on its own , we should be trying to regulate on the size of the company. it is always a first memr problem. >> do you agree that a private party, engage in censorship? a privatlaschool says any studt o expresses support for israel'sarith hamas will be expelled. would that be censorship or content moderation? question first question would have to be for some kind of regulation that prohibits interacting in that way. if you're thinking about a public accommodations offer. >> no. i am just talking about technology. >> you could say the trade is

early with sensory lift contingent w censoring -- a candidate who wanted to publish his speech -- that particular word you used doesn't matter what yoha to look at is whether what is being regulate by the government is something that is expressed by a private party. >> the word th y use matters only to the extent that we want to resist the orwellian temptation to recategorize offensive conduct but anyway thank you. >> general, finally understanding the argument -- let me make sure i d when i came in, i had the reaction just as leno did. i have been thinking about what that does bau i agree with

you as i uerand where the stage and below us toay we'll have to offer you any justification for any part because everybody -- the social media compani they are common carriers i think what is clear is -- where questioning that that is not true. there are many functions that are expressive that we can say our common carriers. buev if we decide to rely common cris, the issue would be one of what is the level of sctiny. there is no level of scrutiny we're going tadess. antony of the expressive platforming or deplatforming of thin. i don't really think that is true.

eyan come in. i am not sure they can do any of these things are some of these things -- enf it is a sort of content exclusion. the government carrier does not have to permit unruly behavior. they'll have to throw somebody f the train if th a threatening some deals. i guess what you're saying is let's keep the injunction in place? on the application of this law and have, based on what level of scrutiny given the function. >> we think the court should hold the party to the way they eliminated this case. it is uncommon for the court to

-- if i can respond on the commentary point -- thk you have put your finger on really important respon here to many of the argumen tt florida is thinking about. they suggest the designation of a platform of a common carrier or not has se sort of significance but it is compte irrelevant to answering to first amend the question. it is not like couplershaare treated as common carriers have no first amendme rights en it comes to their special acvies. that is a common carrier with a transportation passenger. but that is entitled to first amendment precon. the reason for the mandate in the common carrier scenario which poses no problem on t first amendment is there is no speech for expressive activity when carrying passengers and communication. it is entirely different that is inherently expressive.

that loo jt like the kind of protective the court has cognized in other cases. ether usa -- whether you say they are common carrier or not. >> i think i want to try again on this question. i agree with pretty much everything you said. l's take that into assumption. that is when ford is trying to regula bed on the newsfeed. we can't do that because facebook newsfeed is providing a kind of speech product. but when ford is trying regulate gmail, we ca't do that because gmaiisot in the business of dividing that sort of speech on it. >> if we can assume the statue covers a variety of things, direct messaging, uber and

things that are not creative speechrocts and we have this first amendment doctrine that ys if you can find a legitimate suite, we can overrule something facially. but you don't really do -- you n't want to allow this law to go into effect because of the unconstitutional applicatis you are tki about with respect to all of these companies that are creating space -- speech products. so what do we do? >> if you were confident the particular provisions would regulate the conduct of the companies you are referring to -- i think that wld hold to the theoryf facial invalidity. it is not as though it said the statute -- >> i think your point.

we can just say we n't even think about those questions because it waligated in a certain way. but suppose we think it is pretty obvious that theyovers a lot of stuff? suppose we were to -- we could take notice of that. then what? >> i would make clear that with respect tohe issue, florida is wrong to say it can make it that much clearer. otherwise it will be right back up here an emergency' in. i think the court can decide that much. if you thi tre are additional questions about the scope of florida law -- i d't

have a particular interest on behalf of the united states on what you do with the parliamentary injunction. this is backed up by $100,000 in pelties for violation. that has a huge hard -- has a huge chilling eecon many. >> this is a facial challenge it is an all or nothi dl. how is a court supposed to make supply rulings on a spatial challenge? >> i got the first point. quickly might run out of options. i agree that these are hard questions. i suppose you could certify the unresolved iue if you think it is necessary to reach into the position in the.

>> i just want to follow-up on tests leaders questions. i think he asked good thought-provoking and bring questions. when i think of orwellian, i think of the state. not the private sector. no private individuals maybe peoplha different conceptions of orwellian but the attaking overedia like in some other countries and we may clear we don't want to be that country. we have a ffent model here and have since the beginning. we don't want to stay interfering with these private choices. this is my question. 20 it dealt with the idea that

newspapers have become so concentrated and so bi that maybe we should have a different rule. they talked about those changes. e uses of bias and manipulativeepting are said to be about mexican religions of modern media empires power. the monopoly means communication allows for all or no critical analys othe media. and then he says from this premise, the only effective way to ensure fairness is for

government to take affmave action. and then he goes on and explains we are not going to do that. our rsamendment stands against that. wer much validity may be unin hisrguments. at each pot,he implication -- implantation of a remedy calls for somhi essential. compelling them to publish what reason tells them they should not publish. he says we are -- will have a big exception to the idea that the firs amendment distinguish the at from the private sector and private individuals. for 50 years later, how is that

principle articulated in 20? >> i tnkt does establish a bright lamp opposition that the ate even if it has these concerns about market power and dominance and control cannot direct and overtake the function. atheame time, i in they are legitimateonrns here about the kind of power and influee cial media platforms wheel. it is not like the government lacks tools to deal with it. it is not like you can't regula it at all. there is a wholeodof government regulation that woul target conduct. things like antitru wls or consumer protection.

even in a situation where the government things into this necessary to regulate in a manner that will affect otted speech, that is not the end of the inqry you still have a cncto establish your regulation can pass conitional muster. i want to be very clear that we are not suggestingovnments are powerless to respond to some of the conces ntioned. i think one natural place go is disclosure. you at least make sure tt users have a surety of h they're acting and with what policiesre >> on turner, dickie was content neutral there. >> they concluded that the governmentalnterest as you put it was unrelated. my friend suggested that 4.5 was precise at the same intest

this is to change the speech o the platform. they do not like the way the problems were moderating ntt. whether that is candace speech, speeches by journalist entities or otherwise. we think the court of buy intermediate scrutiny here. >> thank you. >> i asked this practical qution that is just kicking off. i just want to be sure i am understanding your answer about how it is different. he reported that juste gan. it wl right appear on emergency pour you are encouraging us to dress at least a question of whether it is a facebook newsfeed.

but i think treere some real problems with these otr applications. do youhi it is an option for kids today? do you think it would be unconstitutional? because we don't know about these otheapications? that might be within the statutes legitimate suite. we are going to send it back to the court to sort out. >> tnk it would be one possible approach appeared want to express strong agreements. it underlies that question. all with respect to the types of application we have been discussing. if you think those issues are properly used in this cas i don't think the court has received a breathing frankly but it seemsikit would be a

reasonable thing to do. the factual development and consideration byheower court. >> my other question is about section 230. this is between the post and the post contentor which t platform would not be liable. that is different. is tt ction 230? >> ihink this is a difficult issue about how tutoring might apply. i have to confess iavnot gone back. i think there are circumstances

where it is the platform'ow conduct. that is something that mig n be immunized. this is all part from the first enent issue. whether or not you thi this is right -- wehi there are some siatns where they won't have immunity. that is a distant question. >> i totally agree. i also thi tre are a bunch of landmines. i inthat has section 30 implications. i would think the court could try to make clear is not the specific statutory terms or this first amendment characteratn

is proper. the court can very clearly outline that. >> thank you. >> i hear you struggling valiantly to set aside other kinds of applications. i guess i can't figure outhy those other applications aren't in this case. i think florida defeedhe law as the net choice chleed it. it brought a special challenge. i never undstd that. they understood that to an that thathoice is right in this case and that number to co in the choice has to -- we ha a difference of opinion on how you say it. but that burden is to show that

there are either no valid applications of law or that the law has a legitimate suite. if we could identify other applications. if we see roads in which labor d ney services or what not to be regulated, d't understand why that doesn' mean that choice has not met its burd a so that is the answer. y have to conduct it. it is not just about the universe platforms out there. you really have to parse the challenged provisions of florida law. you have to ask if the platforms are engaged. >> the question is if its e choice is burden to have presented the case to us in that way. if we don't have the information, don. >> we don't ha aarticular

state and how you think about your own litigation. he should be on both sides. thats early the central aim of this law. it is on the core function of the website that pncle contains user generated components. we could peek around the corner and find se possible valid plation. it could go down a complicated road. >> the confusion is that the look on his face is really broad. we have idhat. many people have noticed it could apply to all sorts of things.

i appreciate all that but we have a special challenge. and to the extent entire logos. maybe these other lawful applications would go as well. >> you are looking at this properly. i don't know if the court is definitively resolving it. i want to agree, i ha se sympathy here. i ha bn working with my team to say itoe't -- does the seam cover direct messaging? we think there is a loof ambiguity -- not to resolve the ntl issue. it would ruire these by forms at arereated the compilations of third-party speech.

>> thank you, counsel. rebuttal? >> first on the procedural poste,he fact that there is no record ts case i the choice fall. we wanted to slow it down. we even offed voluntarily stay below while we did that. they say we want to go fast and oblige them. there were no meaningful opportunities to take the scovery. we tried to say let's litigate this on appeal and they said no, we want to stay discovery. this court obliged. the fact thathe is no record is not 44, is there fall. and contrary to what my friend said, it does aly

right before thats the definition of the key platform. if we were sent a journalistic enterpri i don't think that of , that broadca you did last week, that is covered. it is not just gilit is what's at. the consequences of my friends arguments are reallqut suite. that evea traditional commentary has the first right against the sensor. i guess that meanseron could turn it over tomorrow. that would have sweeping coequences. verizon has no message.

that principle is distinct from what my friend from the united states is saying. she is talking about big range material on the website. thatidot speak to whether th h a competition all right to censor. just because you have to carry content, you can stillrrge it. >> it ignores the distinction between the organizational function. they have to keep it separate in their mind. >> thank you, counsel. the case is submitted. chris c-span's washington journal, ally form involving you

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