>> we will hear argument first this morning in case 22-277, moody versus netchoice. mr. whitaker? >> m cef justice and may it ea the court. teet platforms today control the way millions of americans communicate with each other and with the world. platforms achieve that success by marketing theels as neutral forums for free speech. now that they host the communications of billions of uss, they sing a very

different tune. th now say they are in fact editors of their users' speech, rath le a newspaper. they contend they posss broad first amendment right to censor anything eyost on their sites, even when doing so contradict their own representations to consurs but the si of the first amendment is to evt the suppssn of speech, not to enable it. that is why the telephone coan and divery service has no first moment right to u their services as a chokepoint to silence those they disfavor. broadly facilitating communication in thawais conduct, not speech. if verizon asserted a first moment right to cancel disfavored clients at a whim, that wld fail. social networking companiesre in the business of transmitting their users' speech. their users are the one who create and select the content that appears on their sites.

the platforms disavowal responsibility for that conduct in their terms of service. th platforms do sort a facilitate the presentation of user speech. this court just last term in twitter versus tamana describe those tools as a little more than passive mechanis r organizing vast amount of third-party content. the platforms do not have a first amendment rht to apply their censorship policies in inconsistent manner and to nsor and deplatform certain users. i welcome your questions. >> counsel, it would seem that this case is aacl challenge. to se tent, it relies on the doctrine but that seems to be an odd fit because the respondent represents virtually all of the platforms and it would be easy enough for a platform who'

affected to bring it as an applied challenge. would you commt that? or at least address the fact that this is a facial challenge. >> certainly, your honor. i think that's a significant aspect of this case. it com tthe court on a facial challenge which means the only question before the court is whether the statute has a plainly legitimate sweep. don't understand them. to be making an overbreadth challenge would rely on the effects on third parties. they are principally relying on the effects on their members if they were brgi an overbreadth challenge, they would have to show serious third-party -- >> how would they do that if wh ty haven't shown there is no way that this statute can be applied that is consistent with the constitution? have they met that? >> they certainly have not. we think the statute has a plainly legitimate sweep.

certainly, there are a number of platforms that are open to all comersndontent, much like a traditional common carrier. as a traditional common rrr consistent with the first amendment would be subject to hosting requirements, nondiscrimination requirements, we tnkhe platforms satisfy that characterization which are absolutelyou give this statute a plainly legitimate -- >> this is such an odd case for our usual jurisprudence. it seemed like your law is covering just about every social media platform on thinrnet. we have nontraditional social media platforms like smartphones and others who have submitd

mici brief telling them that this law could cover them. this is so bro. it's covering almost everything. the one thing i know about the internet is that the variety is infinite. o point in a challenge like this one does the law beco s neralized, so broad, so unspecific, really, that you be the burden of coming in and llg us what exactly the sweep is, and teinus how there is a legitimate sweep of a meingful swath of cases this law coul cover but not others? when does the burden shift to

the state when it writes a law also broad that it indeterminate? i >> >> n't think so, your honor. i still think it is their burden as the plaintiff challenging the action to show that the law lacks a plainly legitimate sweep. let me say a word abt e breadth of the law. the legislatureid define the rmocial media platform, which is part of what triggers the law's application, but the breadth of that definition, which would not cover every single website, it would cover large websites wh rge revenues and subscribers and the like, but the breadth of the law is narrowed by the fact that the sutaive provisions of the law are regulating websites that host user generatedonnt. that is what the substantive due -- the legislature defined the -- >> so let's talk about etsy.

that is a marketplace. i will try, in someay it is like an online bookstore, online magazine, online newsper online whatever you want to call it, and online supermarket. but it's not, because even thght has infinite space, it really doesn't. viewers, myself included, o users, can't access the millions of things that aren e internet and actually get through them and pick the things we want because there's too much information. so we are limited by human attention sp. so are they. but let's look at etsy. etsy is a supermarketh only wants to sell vintage close. it will and es limit user

content. i's a free marketplace but it says to the people who come onto itsarketplace, we only want this kind of product. they are going to have to censor, they are going to have to take people off, they will have to do allhehings that your laws say they can't do without all of these conditions. why is that? why should we be permitting and under what level of scrutiny would we be looking at this oad application of this law that affects someone who all they wantoo is sell a particular kind of product, and they haveommunity standards and they tell you they don't want you to curse, they don't want you to talk politics, they don't want you to do ater. all they want you to do is sell your product. but if theara public marketplace, which they are, this law would cover them.

>> i think that's right, your honor. but let me say a wor about how the law might apply to etsy. it would not regulate the goods at sea is selling. with the law regat is the moderation of user generated content. itould only apply to etsy to the extent -- i'm not sure to wh eent it would apply to etsy. i guess people are uploading user generated content in connection with the sale of goods. it doesn't limit what goods etsy can limit its marketplace two. >> well, it opens it up for sale ofoods. it says don't speak about politics because that's not wh our marketplace is about. that viewpoint discrimination. this falls under a whole lot of your listings and disclosure requirements. why are we imposing that on something likehi >> in prune yard versus robbins,

this court held at the state of california could regulate the speech activity of a shopping mall which was hosting speech. >> but not inside the stores. said that theyou come, but if they go inside the store, we didn't say anything that someone couldn't stand on a platform in the middle of the store and scream out their political message. we said the common areas where re permitting others to speak, w will let this speaker speak anything he orants that's why i'm afraid of all of these common-law rules you are trying to analogize to. >> your honor, i do think etsy is similar as it is in fact hosting speechndome expression as an incident to some other commercial and provid -- enterprise and that makes etsy's speech interest even weaker.

youan your presentation talking about concern about the market power and ability of the social media platforms to control what people do. your response to that is going to be resinghe power of the state to controlhagoes on on the social media platforms. i wonder since we are talking out the first amendment, whether our first concerns could be with the state, regulating with what we have called the modern public square. >> ihi you certainly should be concerned abouthat, your honor. what i would say is that the kind of regulation the sta of florida is imposing is one that is familiar to the law when you have businesses that have generally opened their facilities to all commerce and content, this is the way it has worked forenries. if you were an innkeeper and

held yourself out as open to the public, you could be permitted to act in accordanceitthat voluntarily chosen business model, so i think e court should proceed careful, but one thing that's important to ke imind is there is a first amdment interest in ensuring that large, powerful businesses at have undertaken to host massive amounts of speech and ha the power to silence those speakers, the state has a first amendment interest in ensuring the free dissemination of ideas. >> is there any aspect of social media that you think is protected by the first amendment? >> yes, youron. i can certainly imagine a platform that woulde bject to this law that wou ieed have first amendment rights. we point out in our brief tt if you had an internet platform, that indeed had a platform

driven message was selti on the front end, democrats.com, i think it would be a different analysis compared to a company like facebook or youtube who is in the business of basically trying tget 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 but they have some le we are going to respect the rules they do have even tugh they let a lot of people come in. they don't let a few people come in and that seems to b important. similarly here, facebook, youtube, the a padmatic socialed companies and they have rules about content. you can't have hate speech. you can't have misinformation with respect to particular subject matter areas.

somebody can say maybe the should enforcehem even more than they do, but they do seem to take them seriously. they have thousands and thsands of employees who are devoted to enforcing tho rules . so why aren'they making content judgments notui as explicit as the kind in your hypothetical, but definitely th 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 lot inhere, your honor. maybe i can start with the hurley case. in hurley, you had aare -- >> may be start th more general question. i'm happy for you to talk about hurley. >> i can go anytime you want. the broader question about rules of the road and the like. common carriers have alwa

conducted their businesses subjt general rules of the quorum. i think the fact that the plfos have general rules of decom,pwards of 99% for all that cteodation, that's a prucof the fact that they host so much content. the fact remains upwards of 99% wt goes on the platforms is passed throu whout review. they have spam filters on the front end and the like. >> that 1% seems thave gotten some peoe tremely angry. the 1% that's like, we don't want anti-vaxxers on our site or we don't want insurrectiost on our site. that is what motivated the laws and that's what's getting people upset about them. othereoe have different views about what it meanso provide misinformation 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, but 's up to the individual speakers. >> the fact that some people are angry about content moderation doesn't show that it's their speech. we don't know whether e advertisers think it's their eech or whether they just disagr. there are aersers and people angryt eech who don't get a heckler've on the law. we know the fact that a hosting decision is ideologicall charged and causes controversy cannot bthend of the game. i think rumsfeld versus fairwood would have had to meut the other way. in rumsfeld, the law school felt strongly thatheilitary were being bigots and they did not wa them on campus and yet this cot did not look to the ideological controversy surrounding those decisions. instead itood at objectively whether the law schools were

engaged in inherently expressive conduct. >> it looked at the fact that the schoolsere 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 rumsfeld versus fair means. but let me take a crack. as i read your opinion, you did not rely on the funding aspect of the case to rea t conclusion that what was going onas not first amendment protected conduct. you were willing to spot them at the question would be exactly e same if it were a direct regulation of speech as opposed to a funding condition. i absolutely think the analysis in that case directly speaks to this. >> can i ask about a different precedent about what we said in

buckley? this picks up on the chief justices earlier comment about vernment intervention because of the power of the soaledia companie. itee like in buckley in 76, a really important sentence in first amendment jurisprudence, the context that the government may restrict the speech oso elements of society to enhance the reliv voice of others is wholly foreign to their amendment and that see toe at you responded with to the chief justice. then in tornillo, the court went on about the power of newspapers and the court said they recognized the context about best cng placed in a few hands, the power to inform the american people and shape public opinion. at had led to abuses of bias and manipulation and the court accepted all that but still said that wasn't good enough to allow someinof government mandated

fairness to apply. how do you deal with those two principles? >> first of all, if you agree with their frontline position that what ibeg regulated here is conduct, not speech, you don't get tonterest and scrutiny and all that. the law advances the first amendment interests that i mentioned, but that that interest that our law is servin iyou got to a point in the analysis that we fired consideration of those -- >> do you agree if speech is involved in those cases, that those caseme they lose? >> no, i don't agree with that. the reason is because the interests thaturaws serve our legitimate, and it's hard cae different parts of the law serve different interests. i think the one that sounds and you're conceedhat his most directly implicated would be the hosting ruiment applicable

to journalistic enterprises. onprovision of the law says that the platforms cant censor, shadow band or plform. journalistic enterprises based t content of their publication or broadcast. that serves an interest similar to the interest thathicourt recognizes as legitimate intern -- in turner. when cgrs imposed on cable operators must carry obligation r broadcasters. as a broadcaster, what the court said washe was not just a legitimate interest in promoting thfr dissemination of ideas through broadcasting, but it was indeed a highly compelling interest. i think the jourliic enterprise provision serves that interest. therarother interests the law serves. the consistencyrosion is a consumer pteion measure. the consistency provision which

is the heart of our law,us says to the platfor, ply your content matter ration policies consistently. have wr policy you want, but apply them -- as a printing presses and movie theaters about what they show, bookstores, newsstands? be consistent in what kinds of content you exclude could that be done? >> i don't think so, your honor. >> and why not? >> here, the social media platforms, terms of service, content moderation are part of the terms under which thear offering their service to users. i don't think that paradigm reallyitin what your honor is talking about. we agreed, we certainly agree at a newspaper in a bookstore is engaging in inherently expressive content.

these social media platform are not like those. >> i guess the hard part f is really trying to understand how we apply this analysis at th broad level of generality that i think both sides seem to be taking here. you say what is being regulated here is conduct, not speech. i guess maybe if you were talking about facebook's newsfeed feature, but there are lots of other things that facebookoe, that might be speech, but thereight be other things facebook does that does not qualify as speech. don't we have to drill down more to figure out whether or not things are protected? >> actually, i don't think so. at strongly favors our argument. all you need to look at is whether therarat least some activities. >> but i guess what i'm saying

is, you ntned the fair case. we did not say that law schools - as a categorical manner are always engaged in prected speech. we looked at the particular thing. the law school was saying we don't want theseerin entities in it. i hear you suggesting that we can just s facebook is a common carrier andherefore everything it does qualifies as conduct and not speech and i don't think that's the way we've done this in the past precedent. can you speak to that? >> certainly that's not what we are saying, yo hor. i agree it's important to isolate what conduct each particular provision of 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 of generality that sufficient to conclude if th law had plainly legitimate sweep is we are talking about the social networking companies, activities and conte moderating, user uploaded content. that i think is the relevant activity. so 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 thfa case. is that what you are saying? >> i don't thinko. i don't think it would map onto our theory inhe case. i'm not totally awarofll the facts of linkedin. >> i think that'a problem in this case. we are not all aware of the fas. >> 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 to defend against. >> on that score, we have a bit of a challenge because different legal principles apply in different circumstances and erare many different fendants or plaintiffs here with different serce so that's complicating feature on our cial challenge. here's another one forou what about section 230? which preempts some of this la 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 c wdo that without looking at 230? >> se of this was briefed a

the search stage. i don't think the section 230 eemption will dispose of the case. the district court reached that issue but concluded it still had to reach the constitutional isyway. >> i will get back to this in my turn anyway. >> thank you. anything f? >> mr. whitaker, can you give us your best explanation of what you perceive the speech to be in this case or allege to be in this case? >> as i understand their contention, it is this ia that platforms, in having content moderation policies, are somehow creating a welcoming cmuty, i guess. it seems at that level of generality, it seems le tautology than a message. basically we want the pplon our sites that we want. certainly the pruneyard case,

the mall wanted toree a certain environment and yet the court said that they d not have a first amendment right to do that. >> think what i wasore interested in is we are using brd terms like content moderation, and throughout the briefs you have shadow banning, de-prioritizing and all sorts of ings. i guess with these facial challenges, i alwaysav a problem that we are not talking about anything specific. in the applied challenge, at least we know what's in front of usnd what your interpretation or the states interpretation of the law isn at case. now we are just speculating as to what the law mes. so i'm just tryintoet more specificity ato what the speech is in this case.

that they are censoringnd don't know of any speech interests in centering other speech,uterhaps there is something else. >> don't think they do have, certainly not a speech interest. mt i think there's interest in the allegedly inhereny expressive conduct of speech. we do not think they ha a message in censoring and deplatforming users from the site any more than the law schools in fair had a message booting military recruiters off campus. >> justice alito? >> did the plaintiff's raise content overbreadth bew? >> i could not find the word overbreadth in anyf eir pleadings. >> wre in the record should i look to find a list of all the platforms that are covered by

the florida statute? >> i'm afraid that doesn't appear in the record bau i think the platforms are fairly cagey about whh their members they thought the statute pld to, that e cord only contains thr ptform specific declarations. s, facebook, and youtube. that's part of the problem in this case, the recorha not been fully develedo answer the question so we are kind of litigating in thda. this wast preliminary injunction at breakneck speed without thetate having a chance to take discovery. >> i will ask mr. clemt that question as well. as to the platforms that are covered, where in the recd 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 peor there are three platform specific declarations and geral declarations to talk about members more generally, but it is not sort of the all in onplace. >> does your law cover wsis that primarily or exclusively engage in non-expressive condt? >> i think it does cover webseshat engage in primarily non-expressive nduct. wld characterize the social networking ptforms engaging in primarily non-expressive conduct insofar as they are hosting speech just like a traditional common carrier is not engaged in expressi cduct in transmitting communications of its subscribers. we do think the law would apply to certainly the largest social

networking platforms. >> what is the right standard for a facial challenge if we think your law indicates a percentage of expressi conduct and proportion of non-expressive conduct? how should reanalyze that -- we analyze at we need a numerator and denominator. wh wld they be? >> i don't think the standard would have a new minute -- numerator and denominator. we would vwe as whether the statute has a plainly legitimate sweep. the numerator demitor comparison would be something you would do if there were an overbreadth claim, but i don't understand my friends to be making that claim. i could nofi the word overbreadth in their pleadings. in the texas case, there is a note. >> justice sotomayor

justice kagan? >> i just want to understand your position and i want to narrow this to e paradigmatic socialed companies, nsfeed postings, facebook, youtube, twitter/x. suppose that i say, take this as a given, you can aueith the fact is, but don't. [laughte suppe at i say for the most part, all these places say we are open for business, post whatever you like and we will host it. but there are exceptions to that and clearly contt sed exceptions which the companies take seriously. let's say we thinth misinformation of particular kinds is extremely damaging to societ misinformation about voting,

about certain public health issues. so we also think hate speech or bullying is extremely problematic, so we are going to enforce rules against ts. if they will only apply to a small percentage of the in people want to post, for the most pt they are open for busine. bu we are serious about those content-based restrictions. son that world, why isn't a classic first amenen violation for the state to come in and say we are not going to allow you to enforce those sorts of restrictions, even though you are basally like in an editoria judgment, 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 intermeate scrutiny under 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 a sing we are a big forum for lot of messages but not f those kinds of messages,e nt to exclude those ndof messages. why isn't that a judgment? >> the court held otheisi think in pruneyard because it waditorial policy about leaflets -- >> that was just about leaflets and the smaller 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'want anywhere near their site. >> but you still would have to ok at the objective activity

being regulated, namely nsing and deplatforming and ask whether that expresses the message. because they pe much content, an objti observer will not readily attribute any particular piece of content that appears on their site to some decision to refrain from or sensor or deplatform. >> this is a real-worldxale. do you think twitter users one day woke up and found themselves to be x usersanthe content rules had changed and their feeds changed, andudnly they were getting a different online newspaper, so to speak, every morning. a t twitter users thought that was great and a lot of twitter users thought it was horrible. in fact there were different contentudgments being made that was very much affecting the speech environment that they entered every time they opened their app.

>> your honor, respectfully, that does not answer whether they he message in their censorship, and i'm sure people objected strenuously to the fact that the law schools were permitted to interview on campus. i'm sure people wanted to b leafleting at the mall in pruneyard and that does not give them a message. the rson 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 chance to finish up on the section 230 point. i thinits section- that the law is not enforceable to the extent it conflicts with section 230. why wouldn't we analytically want to address that early on in these proceedingwhher in this court or the lower court? >> sure, your honor 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 rubric of otherwe objectionable. there's a nice article on this in the jrn of free speech law. weavnot briefed this. the second point would make about section 230 c2 is it only applies to good-faith content moderation. to the extent our law prohibits them from engaging in bad faith content moderation, that is not preempted by 230 c2. one way to understand the constitutional terms in ts case is they are in essence asserting the constitutional right to engage in bad faith content moderation because they already have the right to engage in a lot of moderation of

illicit content as long as they do so in good faith. >> to followp justice kagan's line of questioning, you have analogized common carriers and telegraphs in particular. why is that an apt analogyere? >> because the princal function of a social media site is to enable communications, enabling willing speakeran listeners to ta teach other. it is true t pts are more public, but i don't tnk verizon would gain any greater right to censor since we -- simply because there was a coerce call. i don't think ups or fedex would gain a greater right to censor books because there was a truckload of books. so the analogy is at. there's been talk of mark power. let's not an element of traditional common carrier regulation and some entities that are rulated as common carriers like cell phone

providers operate in a fairly competitive market. >> justice kavanaugh, in your eng remarks, you said the design of the rsamendment is to prevent suppression of speech. you left out what i understand to be three keywords in t first amendment, the governme. do you agree by the government is what the first amendment is targeting? >> i do agree but i don'agree there is no first amendment interest allowing the people's representative to promote the fr exchange of ideas. this crtas recognized that as a legitimate first amendment interest in the turner case and going back to the associated press case. >> in the turn case, the court emphasized was unrelated tth suppression of speech so i'm not sure what it is related to

ensuring relative voices are balanced out, whether there's fairness in the speech or balance in the speech, that it's covered by turner. do you agree? >> no, i don't. >> what did turner meany unrelated and suppression of speech? >> we don't view our law as advancing interests related to the suppression of speech. think the interest protecting journalisticntprises from being cen from msnbc being censored because an internet plfo doesn't like a broadcast it showed on the stion the other day, that's just interest in preventing it from being silenced. it is ginghem a chance. >> on the editorial control point, you want to the idea, and i understand editorial ntrol is the same as speech itself and you emphasized uneyard over and over. but we have a whole other line

of cases like hurley pg& turner, which means it is precd by the first amendment. i understood the line between pruneyard on one hd and the cases on the other to be whether you are involved in a speech communications business as opposed to a shopping center. can you respond to those? >> i guess i don't dispute the principle of editorial control. i just don't think social media atforms are engaged in editorial ctr. the recruiters -- the law schools in rumsfeld versus fehr argued they are exercising editorial control when they booted military recrte off campus. this court h ne of it. the court does need to draw a line i think between selective speech that is exercising itorial control and a speech host like a common carrier or like the mall in pruneyard that can be prevtefrom silencing

its customers. >> on the selective speech host point, i tnkou made the point to justice kagan they don'eliminate much of speech, butidn't we deal with that in hurleys ll and say that the mere fact that the organizer usually took almost all comers with the irrelevant first amendment interests and editorial control over who participated in the parade? >> i guess i think hurley turned more the fact that the activit was a st. patrick's day parade th an expressive purpose. so perhaps it can be expressive and more lenient. i would notth court in hurley relied onheact there was front d selection of the members of the parade and the committee that was responsible for it was doing fronen selection. i think selectivity is totally relevanto o is the speaker

and we analogized in the brief where this court has made the me point in a variety of cases. what you have saids at if the government is not exercising a ton of control over the speech that comes into a forum, it is not speaking. >> thank you. >> mr. whitaker, i have a question about editorial control. when it comes to platforms tt are the traditional social media platforms like youtube, instagram, tiktok, twitter/x it all turns on editorial conol it seems to me when distinction beeen this andai is that ese companies are speech hosts. the law schools in fair were sting job fairs. they were not gathering buh of people and saying present your ideas. these companies are hosting

speech. why isn't that more le newspaper in tornillo >> it is different but that's why we leaned on the common carrier analogy which i thk reflects that a speech, you can't just say it is a speech host and go home. if that were true, verizon could censor. >> p ade common carrier for one second. just tell me why this doesn't look like the same editorial ntrol we see newspapers exercise. >> because the platforms do not review -- it is atrge kind of editor that doenoctlly look at the material that is gog it's comp -- compilation. th say they did not even know that isis was on their platforms doing things. >> is it because it's not

humanized? -- human eyes, not humanized. as justice kagan was pointing outes of service, we want is kind of site. some s for example tiktok might have boosted pro-palestinian speech and reduced pro-israel speech. that's a viewpoint and if you have an algorithm ditis it not speech? >> it mit be, but in twitter anonles, the platforms told you that the algorithms were neutral methods of organizing speech likely do a decimal system. >> but>> that's not what they are saying he. let's assume what they're saying here, that they are organizing it in ways that express a interest. do you think it would be editorial control in a first amdment sense? >>o. i agree with justice jacks that it is important to separate futions are the organizing

function from the hoin function. simply because thearrequired to host certain speech, that does not meaningfully prevent them fm ganizing that speec . i think the crtas to separate out regulation of the organizationrosimply preventing tm from censoring. and the reason, it is differe from a newspaper, is two prcie points. base constraints are something that this court inaiand in tornillo relied as one factor that's relevant. soci mia companies don't have space constraints which means a requirement to host an additional piece of content is a relatively less -- >> justice sotomayoroied out even though there may not be physical space constraints, there arthconstraints of attention. th he to present information

to aonsumer in some sort of organized way and there's a limited enough amount of information the consumer c absorb. don't all methods of organization reflects some kind of judgment? could florida enact a law telling bookstores that they have to put everything out by alphabetical order and ca't organize or put something closer to the front of the store that they think the customers will want to buy? let me take a step back. one of the problems is we don't have any information on the record of their algorithm. it's difficult toic apart what the algorithms are doing. you could imagine an algorithm that could be expressive. if the algorithms work in e manner that the court described th itwitter versus stamina, they look likeeutral ways to reflect erhoice and i don't think that's expreson if it were possibleo have an

algorithm making a website look like a newspaper, it would be dierent. the question of organization is analytically distinct from the separate question of whether they can be regulated. >> so your argument that it's not expressive entirely defends -- dependsn e hypothesis that the sorting and speed functions are solely a neutral algorithm designed to user preference and reflect no policy judgment based on the platform itself? >> no, not at all actually. i think preventing them from censoring esot meaningfully preclude them from organizing. if they are required to carry a piece of content,hecan organize it however they want nerally. there are prohibitions oshow banning and the like but they can organize it however they want. the prohibionn censorship and deplatrmg is not meaningful intfence with gazing.

on algorithms, i would stress that this is a facial challenge. we don't have any particular information on what exactly the content of their algorithms are, so the only question is whether there is possible state of the worldnd which rhythms are nonaggressive. >> let'ssk about the facial alnge aspect of this. florida's law is very bro and we are talking about the classic social media platforms, but it lookto me like it could cover uber, og search engines, amazonebervice, and that would look very different. justice sotomayor broughupt sea. etsy has a feed recommended for you but also has handmade goods. it looks more like brick-and-mortar marketplace or fleamarket tn a place for hostinspch. if this is a facial challenge and florida's law is broad enough to cor lot of this conduct which is farther away from ereion than the

standard social media platform, why didn't you than in your ief defend it by pointing out that there is all thisth stuff perfectly fine that florida covers, we don't want a peonants to sell her goods on ets to 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 sit there and think of l nds of applications of the 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 the platformsre 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 whe ing fail? if we agreed, etsy it's fine, for google or amazon web service, it's fine. is that eugh 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 derminacy in this set o facts and circumstances as justice alitory to illuminate with his questions. we are not quite sure who it covers, not quite clear how the platforms work. one of the things i wanted to give you the chance to address is the lack of clarity aut what the statute necessarily means. you've talked about the

consistency provision for example and represented what you think it means, but we don't have state court determination terpreting that provision, do we? >> the law was not allowed to go to effect so the florida courts have not had opportunity to construe the statute at all so i think the council is strongly in favor of rejecng the facial challenge. in the washington state grange case, th fact that the state courts have not had an opportunity to construe state law being attacked on its face as a reason reject -- >> do you think the statute could be susceptible to multiple interpretations? i can imagine even the consistey provision, what does it mean they have to do this consistely they have to pl the same standard or substantively result in the same level of preference? i can imagine you could teret that more narrowly or broadly. >> there may be interpretive

questions. on that point, i don't think the any ambiguity. the provision says a social media platformusapply censorship, deplatforming and shadow banning standards in a consistent manner among users o the platform. those standards are the things that the sia media company must, under a separate provision, publicly disclose, which w a disclosure requirement the 11th circuit upheld. >> yes, i appreciate that florida's position on the law is peectly clear. >> but i think that language is clear that the baseline for comparison is not an abstct notion of fairness. >> ok, s let me ask about that. g 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 confused about

is how we evaluatth30 day restriction wh spect to determine whether its content-based or content neutral. i appreciate tt its face it doesn't point to a particular typef content, but i suppose it's applied inefence to content? that restrictions regulated and can only be in terms of engagements ever30 days, but we have to look at what it was before and what is now to determine if there was a change. is that content-based or not? >> certainly not. inhe city of austin's case, the court held that because a regulation requires consideration content does not make it content-bad. there's nothing on the face of that provision that targets any partul message of the platforms. to zoom out on the 3 day provision, that iseay an adjunct to the consistency

provision as i understand it. the point is it would not do much good to require the platrmto apply policies consistently if they could just sort of constantly change them. >> i understand, but in the application oeven the consistey ovisions to determine whether they are not doing it consistently, aren't we also looking at coento some extent? i think it's notecsarily as easy as it might seem to determine whether or nothe provisions areonnt-based or content neutral. >> i don't think the fact that it requires conserion content makes it contest -- content-based. there's nothing in the 30 day provision for that your honor. >> thank you. >> thank, counsel. mrent. >> mr. chief justice and may it please the court, florida's effort to level the ayg field and fight the perceived bias of big tech violates the

first amendment several times over. it interviewers wh itorial discretion, compels speech, discriminates on the basis of content, speaker, and viewpoint, anit does all this in the name of promoting free speech, but loses sight of the first principle of the first amendment, which is it oy applies to sta aion. florida defends its law as you heard this morning principally by insti there's no expressive activy ing regulated. at blinks reality. this statute defines the targeted websites in part by how big their audience is. it regulates the content and display of particular websites and tries to prevent my clients from censoringpeers in content. you're telling the websites that they can't censor speakers, you can't turnrod and say you are not regulating expressive activity.

it is all over this law. that brings it squarely within thtehing of tornillo, pg&e and hurley. althe of those cases teach you cannot have forced dissematn of third-party speech and they reject considerations of market power, misattribution or space constraint. reno and 303 creative make clear those principlearfully applicable on the internet. indeed given the vt ount of material on the internet in genel d these wsites in particular, exercising editorial discretions necessary to make the bses useful for users and advertisers. the closer you look at florida's law, the moreroematic the first amendment problems become. sglesut particular websites in plain violation of minneapolis star. provisions that vereferences to political candidates and journalistic enteris are

content based in the extreme. i welcome cour questions. >> mr. clement, if the government did what your clients are doing, would that be government speech? >> it mit government spee, t i think it woulde unconstitutional government speech. with the government isoi is exercising editorial discretion toenr some viewe osome speakers and not others. i think that plainly violates thfit amendment and that is the thrust ofhis court's decision in the manhatta community cable case which is that in this area, looking for ste action is critical. there are thingth if the government does, it airst amendment problem and if a private speaker does, we recognize that as protected activity. >> can you give me one example

of a case in which we have said the first amendment protects the right to censor? >> i told know that the court used that particular locution, but i think that is the thrust of hurley an pe,hat is the thrust ofornillo. and all those cases, a private party did not want to convey and ssinate the speech of a third-party. in every case, the government said we have a really good reason why this prive party has to disseminate the message of a third party. >> i've been fortunate, or unfortunate toavin here for most othdevelopment of the internet. the argument under section 230 has been merely a conduit. that was a case atack in the 90's and perhaps the ely

2000's. now you are saying tt you engaged in editorial discretion and expressive conduct. doesn't that seem to undermine your section 230 arguments? >> with reec> justi thomas, obviously you were here r all of it, i was not here r l of it, but my understanding is my clients have nsistently taken the position that they are not mere conduits in congress, in passing section 230, looked at common law cas. if you are a mere conduit, it means you are free fr liability, but if you start becoming a publisher by keeping bacontentut, you no longer ha cmon-law liability protection. as i understand 230, the whole point was to encourage bses and other regulated parties to essentially exercise editorial discretion and keethbad stuff out of there. aesult, what congress said

is, they did not say you are still conduit -- conduit. they said you will still be treated as a publisher. congressecnized what clients were doing which would lo le plishing, and wanted to protect them against that to coage them to take down the bed material, that if these laws go into effect, wou be forced to convey on our w. >> cansk you about the facials nature of this? my understanding is that to strike down the statute is unconstitutional, then we would ha to conclude there's no possible way for the law to govern these entities and ei conduct. >> with all due rpect, i don't think so. thquestion is whether or not the statute has a plainly legitimate sweep. if there's one little application, th's enough to save the statute.

>> but whose burn that? i thought it was your burden say this statute and almost all of its applications would be unconstitutional in order to get it stricken. >> i think it would be our burden to say the statuteoe not have a plainly legitimate sweep. it is our position, and we did make ts gument below, this statute has no constitiol application and part of that is because none of the statute, no of the part that's in front of you today, applies unless you are a coved bsite. >> i don't understand, i'm sorry. no application, but we have so many different applications of the law for cicely because it is so bro. how can you say that? >> because the statute only

applies to wsis that are a handful of websites that meet the viewership threshold or total sales threshold. it is not the only argument, but one of our arguments is you can't regulate expressive activity -- >> does the florida law cover gmail? >> the florida law i think by its terms could cover gmail. >> so does gmail have a first amendment right to leak tucker carlson's or rachel maddow's gmail accounts, if they don't agree with his or her viewpots > they might be able to do that. that is obvislnot something in the square focus of this litigation, but lor urts -- >> if they don't, how can we judge whether this law satisfies the requirements of either sa lerno or overbreadth? >> i think it is the plainly

legitimate sweep context. students -- since the statute applies to gmail, if it applies at a, because it applies to google whi qlifies over the threshold. it does not apply to competing email services that provid identical services. that alone is enough to make every aspect of the statute unconstitutional. >> h that be? it is nounnstitutional to distinguish on the basis of bigness. >> it is when you regute expressive activity. the statute applicatns >> you are saying, if there were no issue here that this is really a subterfuge, they were trying to get at a certain kind of media companybeuse of their views, and the only issue was it is not worth it to relate 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 fit amendment violation? >> 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 y u cannot go after big companies under the first amendment. >> all you have to do is go after all social diwebsites or all websites. you don't have to draw artificial distincon thatusso coincidentally happened to coincide with the bsites you think have a bias you are trying to correct. two remind you -- >>nd took that out of the question. say they were not going after these companies cae of bias or they thought they had a slant, it was ju gng after the biggest compans cause those are the comni with the biggest impact and the most users. hocod that be a first amdment violation? >>ecause minneapolis star says it is. because writers project says it

is. and because if you got to into lysing so-called consumer protection interest, the consumer protection interest would be the se r a website with nine 9 lln global users as it would be with a wsi with 100 million global users. i in there are red flags overall of theisnctions drawn in the statute. if you lookt the statute more closely, my goodness. the political candidat provision says you cannot have posts about a political candidate. i cannot imagine anything more obviously content-based than that. >> is there any aspect of the service provided on the social atforms that is not protected under the first amendment or that is plainly bound under the first amendment? >> i think it is all protected. >> direct messages? >> direct meag are protected under the first amendment. the courts that veooked at things like whethegml is a

common carrier have actually felt -- the's a case it involving the r that has a specific holding that gmail is not a common crier. much of the logic would apply to direct messaging. obously if this were a statute thatri to address my clients only to the extent they operate at the job board, this would be closer to fair and i would have er case. >> ternment says your reef sometimes errs in to adjusting conduit type activity is always expressive and direct messages, gmail, i take it your view is that providers can discriminate on the basis of political views, religious beliefs, 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 our clients could discriminate and say, you cannot

be on our service, you cannot get access, on the basis of race. >> butowhey use it, and their speech. e ntent of their speech. it has something to do with religion or politics or race -- u n editorialize and use that editorial power to suppress that speech, right? >> that gets to a very hard question. i think itou be speech. >> so the answer is yes. we can delete emails, delete direct messages and we do not agree based on pits, religion, or race. >> probably not in application. a bookstore if it wants to have a display this month to celebrate black history, can they limit the displayusto african-american authors? probably yes. >> so it is here too.. >> there iateast first amendment activity going on and you would apply t fl protection clause to it. yowould decide whether that is permissible or not. obviously i think this case

involves editorial decisions, at its heart, and one thini nt to make clear on the facial challenge point to understand how the case came to be, as you heard tay, my friends principal argument is this does not cover activity at all. when we sought a preliminary injunction, the lower court put all their eggs in that basket. they said we do not want to scrutiny at the preliminary injunctionta. we only have t aument if you hold that this is not expressive acvity. they did the same thing in the 11th ccuit. we have a footnote makinglear on the pages exactly where they did this. they basically said we want to win this on the threshold question that this is t expressive activity, or we do not want to get into the rest of it at this point. we will have discovery and we will have the preliminary inju. >> does the florida 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 allowing direct messages. messages from one facebook user to another on private facility. how ou uber dcriminating on the basis 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 th. the way the statute would define it would be commentsf uber -- tsy, it is the same way -- etsy, it is the same way. you have the ability to put comments on the seller

etsy does not wa ctain comments on that. they want to clean that up to be a place for people to come look at matia. when you think about applatns of this statuteo some of the things that seem lessbvious, it is really focused on that expressive aspect of it. obviously the core of the atute, the motivation for the legislation, the examples my friends from florida inclu i their own petition appendix are about more expressive activity by youtube and facebook's of the world, excluding certain speakers, and they want to erride the classic editorial decision. >> one of the things that is hard for me about this case, let's say i agree with you about facebook and youtube. those soaledia platforms. don't wha to consider these quesonjustice alito is raising about uber and at -- and etsy?

it make me nervous, i'm not sure age about gmail. it is not obvious to me anyway that they cannot qualify as mm carriers. >> i agree you do not want to decide all of that today but this is not here on final judgment. it is here on preliminary injunction. the question is, do you want this law with althe unconstitutional applicaon and by every flodi, these provisions enforced by every floridian being able to gond get $1000 in civil penalties, do you want that antithetical under the first amendment to go into effect while we sort out inri questions? do you wanted toe t on hold while we can litigate is stuff and it turns out there's a couple appcaons that are ok or somebody wants briefing just on the question of whether direct mail is a common carrier? >> is that?

>>bsolutely you can escape that posture. u affirm the preliminary injunction which is in place, if you want to you can point to the clear litigation judgment florida expressly made below, which is, we are not going to get into the intermediate scrutiny stuff. we don't want a record. we are goi tput all our eggs in the expreivactivity basket they couldn't have been more clear abt that below and in the veh circuit. you say this law which h all the first amendment problems, we are going to put on hold and e can sort out -- extent is it the result of your own litigation decision? u uld've brought as applied challenge mid to the platforms you want to talk about, facebook and youtube. butnstead you brought a facial challenge and you claim it also susceptible to analysis under overbreth

you had to show youad probability of success on your faci ooverbreadth challenge. u nnot now shift and say it was a good preliminary jution because it is fine as applied to the platforms i want to talk about. let's forget about the other platforms that mig be covered. >> first oalwe did all of that and we won. secondf all -- >> did you bngn as applied challenge? >> no, because we think this statute is unconstitutional in >> exactly.lications. you suggested it could be shorted out on remand. but on remand it is still a facial challenge. >> it is still a facial challeng you are right. >> you think all the applications are unconstitutional. io. definitions are problematic. >> it is done. if you should prevail, under preliminary injunction, for

practical purposes, it is finished. there's nopptunity to sort out anything on remand. >> there' the whole merits. we've shown the likelihood of success on the merits. we have not won on the merits >> can i try another way? i asked what was the standard and you are sayingouhink all applications are unconstitutional, which i thk is to establish. if we come up with some scenarios in this context in which we can envision it not unconstitutionalwhdon't you lose? >> that is nothe standard with all due respect. this court has never applied the salerno standard in fst amendment case and this would be the worst in this court's history if you started down th road because you can always put some provision into a statute that is innocuous and say there's a couple of fine things in there. you look section by section and the sectio a pernicious from a person admit standard. -- from a first amendment standard.

ication to that.titutional >> so i understand precisely, your position is that the only issue before us is whether or not the speech that is regulated qualifies as -- not to beg the question. the expression that is beres is not speech. tt is one way to put it. you have questions presented, you're goingo able to decide whenever you think is fairly included. i'm pointing out as an artift of the way my friend litigated this case you do noha a record on anything that maybe teresting for intermediate scrutiny and it is not my fault. it is based on their reprentions to the courts below that they did not want to get into intermediate scrutiny. th wanted to tee up expressive >> could you articulate what you think is the appropriate standard if not salerno? >> it is whether the statute has

a plainly legitimate suite. >> could you again explained to me why if you win here, it does not present a section 230 problem for you? >> if we win, we avoid section 230 problem the reason is t 230 is a protection against liability. it 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 viali protection and first amendment status do not go hand in han i n think the parade organizer in hurley was responsible for parade floats thaten into its parade. historically, news stas d others are not responsible for the materials. i do not think you he to say it is one or the other. the 230 protection stands alone.

>> what is that you are editing out that fits under section 230? >> it depends in some cases. is terrorist material. otr ses it is kids telling other kids you should do this tide pods challenge. some cases it is kids that are encouraging other kids to comm suicide. there is a whole bunch of stuff th we think is offensive within the terms of 230 that we are exercising editorial discretion. 230 does not necessarily touch on offensive material. it touches on obscene, lewd, lascivious, filthy, excessively violent, harassing, or othwi objectionable. >> that last one. >> well. [laughter] >> we can have a fine debate about the last st -- how much of tha, at is the latin, the company you keep? we can have that fine debate in some other case.

>> they use th o doctrine, do a lot of work. let's put that aside. tell magn, exactly what the expressi cduct is. that for example youtube engages in. i'm sorry, twitter, the platforms -- twitter deplatforms someone. what is the expressive content d to whom is it being communicated? >> when they deplatform some buddy for violating termof use or continug post material that violates 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. otr people.

>> 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 about who gets excised from the platform. it is what teal people see on their individualizedwh they tap into facebook or twitter or youtube. what they are not going to see is they are not going to see matealhat violates the terms of use. they are not going tsea bunch of material that glorifies terrorism. they are not going to see a bunch of material that glorifies suicide. >> is there any distinction beeen aio or editing that takeple as a resultf an algorithm as opposedo an indivial >> i don't think so, your honor. these algorithms dnospring from the either. they are essentially compete or programs designed by humans to

do some of this editorial function. >> what do you do with deep learning algorit wch teaches itself andas very little human inteenon? >> you still had to have somebody who created the unerse the algorithm is going to look at. >> who is speaking? the algorithm or the person? >> the question in these cases would be that facebook is speaking because they are the ones using these devices to run their editorial discretion across theseasve volumes. the reason they are doing this and of course splenting it with lots of humans as well, but the reason they have to use the algorithms is the volume of material on these sites which ows 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 it a consistent message? usually when we had hle, it

was therearade and they did not wanterin people in there parade. you understood that. what are they saying here? >> they are saying facebook does not want pro-terrorist stuff on ousi. >> we are not talking about terrorists here. those are not terrorists. >> we actually are talking about terrorism here. these lawso into effect -- >> i thought that was a climb. i understood florida, they said one provision in the access , nothing that iinnsistent with section 230. it is consistent with section 230. the e things, if you have a video on how to build a bomb to blow up a church or something, they mbe that is prohibited by something, the kind of illegality provision. if there is something glorifying the attacks of october 7 and one of these companies wants to to

keep that off the site or there is something on their that glorifies sort of incredibly th teenage bulimia and they want to keep that off theirite , they have the 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 f >> justice alito? >> there's a lot of terminogy bouncing around in these cases. out of curiosity. one of them is content moderation. could you define that for ? >> content moderation to me is just editorial discretion. it is a way to take all the content that is potentially postedn e site, exercise editorial discretion in order to make iless offensive to users and advertisers. >> isn't anything more than a euphemism r nsorship? let me ask you this. if somebody in 1917 was

prosecuted and thrown in jail for opposing u.s. participation in world war i, was that content moderation? >> if the government isoi it, content moderation might be a euphemism for censorship. if a private party is doing it, content moderation is a euphemism for editorial discretion. there's a fundamental difference tween the two. >> for editorial discretion. are you affirmatively saying -- never mind. no further questions. >> justice sotomayor? i'm trying to take all this in. i think i came into this very differently than you have. i came into this thinking ther are different functionalities th websites. so some host newseeds, facebook.

some post like justice barrett was talking ou others, gmail or -- where they are just lettingeoe contact each other direct messaging. was thinking, ts law seems to cover all of that. it is so bad. might have some plainly gitimate suite. it might be ok to require direct messaging to give you notice, to be consisten, to paytttion to thirty-day registration. some of these provisions might ok for those functions. you are saying to me that n true. can you articulate ver simply -- very succinctly why you think at this stage on a facial challenge we can say there is no

plainly legitimate sweep wh this particular law after we sort it all out below, we will still survive? i think the court beloways if you try to take that out fr justice hagan's answer -- justice kagan's answer, maybe i don't want to. it because this was passed with discriminati in mind? that is what the court below say. >> t court below said that and that woulde fficient basis. the law is also shot through with content based provisions. i think that is enough to take out the law. every proviowe challenge is speaker based in its limited reach. with this court's case is saying, including def leppard -- including nifla, you can see if speaker based provisions are

infused with viewpoint's terminatn other discrinary influences. if you do that her y don't have to get past the governor's official signingtatement to understand the restrictions on this statute. it is one thing to say they are only getting the big companies. when the governor tling you we are going after the viewpoints of the silicon valley oligarchs, all of a sudden limingt to the biggest companies sttso tell you this is targeted like a laser amt the companies 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 of this law , you had aawhat was focused , it excluded the kind of rated newsfeeds. where your argument

about editorial discretion leaves out. this law did not touch those. it said with respect to gmail and direct messaging and ven and dropbox and uber, all of os things, a site could not discriminate on the basis of viewpoint. just as may be a site could not discriminate on the basis of ce or sex or seal orientation or what have you. so it just added viewpoints to the list. wouldn't that be all gh >> i actually don't init would be. all of those things are in the expressive is this and -- >> suppose it did t y viewpoint. it would just y u cannot discriminate on the basis of the usual protected characteristics. is that alrit? >> that would probably be all right but it would not save the whole statute. >> that jt on this. it is a statute about -- it

excles youtube and facebook. the facebook newsfeed. direct messaging, then mow. those kinds of things -- we are not going to let you exclude on the bas race and sex a w are also not going to let you exclude people on the basis of viewpoint. >> i don't think the first part of that statute my clients would even challenge. whether there is an abstract rst 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 >> what'm saying is in part it is the statute you have here. that gives you your plainly legitima suite. when you run a service when you are not speaking,nle a facebook feed where you are --

ur editorial discretion argument is good because the platform is engaged in speech activities. whenoure running venmo you are not engageinpeech activities. when you have to serve everydy irrespective of whether you like their political opinionsre not , it seems you have a much less good argument. but this statute also says that doesn't it? >> not reall we are in ng of losing sight of the actual statute. let mta you to index 97 a and thdenition of csor. it includes any action taken by a social media plot from to restrict, edit, inhibit publication oreplication of, spd the right to post, remove or post, add addendum to any material posted a user. the term includes actions to inhibit the ali of the user to be viewable or interact with another user of a social media platforms.

censoisll about the activity. they give essentially political candidates and journalistic enterprisea ght to nondiscrimination so they are going to pop up even though -- i have no interest in politics. i just wanto look at feeds about italian bicycles. i'stl going to get floor to politicians? that is what the statute does. you go through, shadow band -- shadowban is all about conte. journalistic enterprises get pride of place. then there ihoyou display the content. maybe the d provision you could sort of say that applies to ube even then ifbewants to change comment policies because all of a sudden theyid one thing to try 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 really weird way re way, why wouldn't they

chgehe editorial policy? i don't understand. and the duty to explain provisions? they are all driven by decisions to exclude conduct. content. that happens a billion times a quarter at youtube. it is a crushing blow, it has nothing to do with the other things you're t about. >> thank you. >> justice gorsuch. justice kavanaugh. >> to pick up on the rd censorship because it is being us ls of differentay when the government sensorsth government excludes speech from the public square, that is visly a violation of the first amendment. when a private individual or private entity makes decisions about what to include and what to exclude, thaisrotected generally, editorial discretion. ev tugh you could view the private entity's decisiono exclude something as, quote,

private censorship. >> absolutely. that was the thrust ts court's decision in halleck. the earlier case may have been incomplete lead different if that was an official citof boston parade. the city oboon decided to exclude the group. the reason the case meown the way it did unanimously is becausitas a private orgazaon 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 i that case tried to rely on fair much the way my friends here rely on fair and this court made clear inhree 03 creative. this is expressive activity. the fact that my friends best case is fair just shows how radical this statute is. this targets expresse tivity in its core.

the amendment said to the law schools you havtoive military equal time in the classroom, t ce would've been 9-0 the other way. that is what floridas trying to do. >> on the procedural posture, this is important to try to understand what is exactly before us. you gotten questionsn is. i want to nail it down for my benefit. you said that they came in and deposed the pi --nd opposed the pi >> that is accurate. depending on the context of how much discovery we are going to have. in that context, we are kinda rested on this. that would limit dcory on both sides and thenn the 11th circuit -- we are not really going to engage on immediate

scrutiny at all. >> it does target 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 wilgon. otherwise there would be discovery. essentially the whole nine yards. can't emphasize enough all of that.

course if it came back to us. and what will happen -- you ha alluded to it. i love that we have heard much ou what you are concerned about. quick sweet kind of have to fundamentally change our busissodel. ea cpany will make their own judgment about how they will come intcoliance. they say this will promote speech. this will discriminate on the basis of content. what we might ithe interim is less do only puppy dogs. until we can get this raightened out. these same companies are gti hammered.

these laws make it impossible until we take so much material off of our sites that we say we are not be inconsistent. " what do you think the work consistency tas? i is not part of the port -- pulmonary injunction. targeting editorial sction. i have not met anybo w thinks theeatimes is 100% consistent in his editorial policy. i think it would be the most >> thank you.tion.

>> let's assume i agree with y about this. possibility to modify the

pulmonary injunction. when the lower court sees all the details, they might not have thsame skepticm at you started with. erare lots of ways to write the decision. what is in place right now is a pulmony injunction for the benefit of my clients. the stute in theory could apply to them. it is going to be powerfully effective in terms of how this case gets litigated in the district. >> just want to push back a little bit on private versus public distinction. i think we agree that the government would make editorial judgmentbo what they can say

in the public square but what you do with the fact that the internet is the public square? i appreciate that these companies are private mpies but if the speech is occurring in this environment -- why won't e concerns about censorship apply? >> i think censorship is only something the governme c do the. it is not -- it is just category mistake. but you would worry about this if wsis like the cable companies in turn has someor of control where they could limit your ability to go to some other website ande in speech. the way websites worked -- faceould limit you to only 19th websites.

facebook could dictate which 20 websites you saw. this would be a lot more like turner. this courtai that t internet is like the opposite of turner. the so much information there. it is so 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 t legitimate sweet point. what is illegitimate about a government regulation tha attempts to weigh this companies apply consistently their procedures? i guess i don't undeta why these anti-discmite and principles are legitimate. >> consistency is a government

mandate whenhat is being reguteis expressive activity. a clear first amenen violation. some of these judgments are very trickyudents. we will take some of the stuff, leating a seventh off. what about a straightforward 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 my times they violate my clients terms of u. we still have to carry it. not just carry itut we have to

give it pride of place under the statute. this gives a license to anybody even if there is somebody who is only going to pull 2% in their local precinct, th c cause us to fundamentally change our editorial policies and have to ignore our terms of use. >> thank you c. >> mr. chief juscend made please court -- the first amendment protects entities that cure, arrange and present other people imageanexpressive compilations. if ts uphill, those parade sponsors and web designers -- it also covers social media platforms. those platforms shape that and

that expresses activity taken by the first amendment. that does not mean every buness that transmits sech can claim first amendment protection for that conduct. companies th carry speech from point a to point b are not shielded by the rve. thats cause they are not producing any expression of thr n. it is not because there are some kind of communications comny exception. none of this is to say that social media platform'army from regulation. governmentsavan important interest in facilitating education. governments have to stay within the bounds of the first amdment. this is all to restrict the speech of the platform to be sure that the voices of some users don't stand scrutiny.

correctional your sending regulations. but if the u.s. goverendid exactly what these respondents are doing, would debbie government speech? >> and just getting e hypothetical cracked. you're suggestg e government itself would allow use t post messages on that. the thing that would implite his first amendment was because the government might be creating somethinli a publicorum -- antic they would all necessarily qualify. the critical difference is these platforms are pritearties. >> mr. clement said the dierence is tt if the government does it, it is ceoring. if a private party doesn't, it

is content moderation. his euphemisms bypass me sometimes or elude me. do you agree with that distinction? >> yes. the critical difference is the governnts bound by the first amendment and they can dictate what kind of speech has to appear. atould create a first endment violation but here it is a private platform that they're making that expressive choice on. they are creating their own expressive product in doing so. there are websites featuring text element ptos, videos and platforms which are private parties not found by the constitution are looking at how they want that to look. that iannherently expressive activity.

the kind of content they think might be hmf. there is no one single message that each platformanustain. at least it seems like their content moderation policies and body adjustment. there is still the baseline of signaling. y indicate that the net choice sometimes airs by suggesting t dsemination of speech is always expressive activity. i do wonder how we a sposed

to do with that factn is spatial challenge context? particularly when many of the platforms prohibited variou kinds of posts. even if the platform disagrees anthey say they do not endorse and are not responsible -- it's her -- it sureous a lot like conduit. >> the kind of company that is literally engaged in carrying speech, transmitting it. a big difference between tt

and with the conduits are doing here is there really facilitating users ability -- instead they are taking that and arranging. >> they are promising you get to express reviews freely. >> and they are rresenting that your views don't represent theirs. nobody understands that. this is a spatial challenge again. >> i tnkooking at the terms of servi, is certainly true th many of the platform have generally indicated they welcome ofide variety of views. it would be incorrt say they are holding themselves out for all forms a possible speech. the state laws are narrowly targeted on the kind of speech

the platforms what to include. because those the section 230 things. after that, they do seem to ome a lot of latitude. when you look at class common carriers, it is very similar. certain speeds that might be detrimental to their business. it holds true for telegraph nter 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 y kind of expression to each product in providing their service. it is a government regulation. request for telegraph companies are just the opposite back in the da quickly they curated alarm speech or tried to. a lot of political speech they did not agree with. >> whatever eupmi one chooses. >> that is the difference here. >> if the expression of e er is there, where does that les in -- where does that leave section 230? i understood jtice thomas was making this point. are not going to treat you as puishers so long as it is not your communication only.

if it is now their communication in part did they losehe 230 protections? >> no. there are the individual user posts on the platform and at is what 230 said, that the platforms cap yoha the -- held liable for it. let me interrupt you class and i think there's y basically compelle--asic incompatibility. >> is the whole premise that

they are common carriers? that they will not be held liable in part because it is eiexpression? they are a for somebody else? >> to the te that the states are turni ts into an argument. th t platform's are not publishing and speaking here. there would be no need if that were the case. >> congress recognizes that they are factually publishers and congress wanted to grant them immunity. that is the whole point of the good san blocking provision. there has been a lot of talk about the case -- how it was litigated. what is available if it goes back. i uld like your views on that. >> we presented our argument in thisas litigating at face

value. at meant they treated this law as if the central provision is focused on the true social media platforms. the website you have in mind when i use that term seems like you to and fabo. this l is not of regulation of thr speech at all. i understand the force of the questions the court has been asking about if there are other types of websites that may be covered? we don't really have a dog in that fight. there are heapplications of the law out there. to jti barrett's question, which of the court do with this? litigated one way and tn it looks like there are possible applications you would have in mind. i would urge the cou ttake over the narrow approach here. they cou ctrol what the true social media platforms are doing to their expressive websites.

companies like uber which don't seem to be creating a possible pef expressive product. while looking at the decision on the record that was created. >> i am baffled by your answer to the chief justice. did ford argue a preliminary injuncti suld not be issued? plaintiffs have not swn that they were likely to succeed on their facial challenge? did they not make that argument? >> they made it bu did not go further and say and the reason for that is because it is direct messaging. >> i think it would be hard for the court to figure that issue out. >>t may be hard for us to figure out what my question was

is the issue before us question mark >> i think the way forward to litigate this case is to say the issue is proper for you. there is no court in this case that considers questions about other types of platforms or other types of functionality. request the record is insufficient to allow us to mfortably decide whether the overbreadth standards d. n't that the fault of the plaintfs isn't the remedy to vacate an remand for all that b fleshed out? i would not say anything is a certain about what would happen in the near future. it would be litigated and perhaps it would develop the record in a way that for the

they should. a list of alternate choice meerrecovered by this. all the functions they performed shs ether it was constitutional in every application and scope that is constitutional. >> i don't want to resthe id and affect the analisf the facial challenge. i don't want to stand in the way tt. withheourt making clear that rick -- with respect to the wer crtmainly the idea that they can control the crematn d editorial fction with respect to their expressive product. that is a temporal provision that is valid in all of its

platforms. >> could i ask you to comment on a w things? >> i understood him to say that email function could be denied on the basis of access to that. direct messaging can be denied on the basis request we disagree with that. >> the direct messaging and email service seems le e premier transmission of communications. we will think that is an inherently expressive product. it has a newsfeed and it is curating more than deciding how to prioritize. >> i don't think that on its own , we should be trying to regulate on the size of the company. it is always a first member problem. >> do you agree that a private

party, engage in censorship? a private law school says y student who expresses support for israel' war with has will be exple would that be censorship or content detion? question first question would veo be for some kind of regulation that probi 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 was censoring -- a ndidate who wanted to publish hispeech -- that particular word you used doesn't matter what you have to look at is whether what is being regulate by the government is something that is expressed by a

private party. >> the word that you use matrs only to the extenth we want to resist the orwli temptation to recategorize offensive conduct but anyway thank you. >> general, finally undersndg the argen -- let me make sure do. when i came in, i had th reaction just as leno did. i have been thinking about what that does because i agree with you i understand where the stagendelow us to say we'll have to offer you any stification for any part because everybody -- the ci media companies they e mmon

carriers. i inwhat is clear is -- where questioning that that is not true. there are many funio that are expressive that we can say our common carriers. but even if we decide to rely common carriers, t iue would be one of ats the level of scrutiny. there is no level of scrutiny we're going to address. and to any of the expressive platforming or deptfming of things. i don't really think that is true. they can come in. i am not sure they can do any of these things are some of tse things -- even if it is a sort of content eluon.

the government carrier does not have to permit unruly behavior. they'll have tow somebody off the train if they are threatening some deals. i guess what you're saying is l's keep the injunction in place? on the applicationf is law and have, based on what level of scrutiny given the function. >> we think the court should ho t partyo e way they eliminated this case. it is uncommon for the courto -- if i can respond on the commentary point -- i think you have put your finger on really important response here to many of the arguments that florida is thinking about. they suggest the designation of alaorm of a common carrier orot has some sort of

significanceut it is completely irrelevant to answering to first amendhe question. it is not like couplers that are treated as common carriers ha no first amendment rights when it comes tthr special activities. that ia common carrier with a ansportation passenger. but that is entitled to rs amendment protection. the reason for the mandate in the comm crier sceri which poses no probl o the first andnt is there is no speech for expsse aivity when carrying passengers and communication. it is entirely different that is inherently expressive. that looks just like the kind of precve the court has recognized in other cases. whether usa -- whether you say they are common r or not.

>> i think i want to try again on ts estion. i agree with pretty much everything you said. let's take that into assumption. that is when ford is trying to regulate based on the newsfeed. we can't do that because facebook newsfeed is providing a kind ospch product. but when ford is trying to regulate gmail, we can't dth because gmail is not in the business of dividing that sort speech on it. >> if we can assume the statue covers a variety of things, dict messaging, ube and things that are n cative speech productsnde have this first amdmt doctrine that says if you can find a legitima suite, we can overrule something facially. but you don't really do -- you

don't want to allow this law to go into effect because of the constitutional applications you are talking about with respect to all of these companies that are creating space -- speech products. what do we do? >> if you were confident the particular provisions woul regulate the conduct of the companies yoarreferring to -- i think that wouldolto the theory of facial invalidity. it is not as though it said the statute -- >> i think your poin we can just say we can't even think about those questions because it was litigated in a certain way. but suppose we think it is pretty oious that they covers a lot of stuff? suppose we were to -- we could

take notice of that. then what? >> i would make clear that with respect to the issue, florida is wrg say it can make it that muchleer. otherwise it will be right back up here an emergency'n. i think the court n cide that much. if you think there are additional questions about the scope of florida law -- i don't have a particular interest on behalf of the united states on what you do with the parliamentary injuncti. this is back uby $100,000 in penalties for violation. that has a huge -- hazard -- has a hu clling effect on many.

>> this is a facial challenge it is an all or nothing deal. 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 u uld certifyhe unresolved issues if you think it is necessary to reach into the position in this case. >> i just want to follow-up on tests leaders questions. i think he asked good thought-oving and bring

questions. when i think of orwellia i think of the state. not the private sector. no priva individuals. maybe people have different conceptions of orwellian but the state taking over media like in some other countries and we may clear we don'wa to be that country. we have a different model here and have since the beginning we do't want to stay interfinwith these private choices. th is my question. 20 it dealt with the idea that newspapers have become so concentrated and so big that maybe we should have a difre rule.

they talked abouthe changes. the abuses of bias and manipulative reporting a sd to be about mexican religions o modern media eir power. the monopolyea communication allows for all or ctical analysis of the media. and then he says from this emise, the only effective way to ensure fairness is for government to take affirmative action. and then he goes on and explains we are not goi tdo that. our first amendment stands against that. however much vidity may be found in his arguments.

at each point, the implication -- implantation of a remedy cas for something essential. compelling tm to publish what reason tells them they shoul not publish. he says we are -- will have a big exception to thedethat the first amendment dtinguish the state from the private seornd private individuals. for 50 years later, how is that principle articulated in 20? >> i think it does establish a bright lamp potion tt e state even if it has these concerns about market power and

dominance and control cannot direct and overtake the nction. at the same time, i think ty are legitimate concerns here about the kind of per and influence social media platforms whee it is not like the government lacks tools to deal with it. it is not like youa't regulate it at all. there is a whole body of government regulation that would target conduct. things like antitrust walls or consumer protection. en in a situation where the government things into this necessary to regulate in a manner that will affect protected speech, that is not the end of the inquiry. you still have a chance to establish your reguti can pass constitutional muster. i want tbeery clear that we

are not suggein governments are powerless to respond toom of the concerns mentioned. think one natural place to go is disclosure. you at least make sure that users have a surety of how they're acting and thhat policies are. >> onurr, dickie was content neutral there. >>hey concluded that the governmental interest as you put it was unrelated. my friend suggeste that 4.5 was precise at the same interest. iss to change the speech on the platform. eyo not like the way the proble we moderating content. whether that is candace speech,

speeches by journalist entities or othwi. we think the court of buy intermediate scrutiny here. >> thank you. i asked this practical question tt is just kicking off. i just want to be sure i a understanding your answer about how it is different. he reported that justice kagan. it will be right appr emergency posture. you are encouraging us to address at least a question of whether it is a facebook newsfeed. but i think there were some real problems with these other applications. do you think it is an option for kids today? do you think it would be unconstitutional? because we don't kn aut these other applications?

that might be within the statutes legitime suite. we are going to send it back to the court to sort out. >> i think it would be one possible approach appre want to express stronagements. it underlies that question. all with respect to the types of apication we have been discussing. if you think those issues are properly used in this case, i don't think the court has reiv a breathing frankly but it seems like it would be a reasonable thing to do. the factual development a consideration by the lower court. >> my other question is about section 230. this is between the post and the post content for which the

platform would not be liable. that is different. is that section 230? >> i think this is a difficult issuebout how tutoring might apply. i have to confe i have not gone back. i think there areirmstances where it is the platform's own conduct. that is something that might not be immunized. this is all pa fm the first amendment issue. whether orotou think this is

rit -- we think there are some situations where they won't have immunity. that is a distant question. >> i totally agree. i also think there are a bunch of landmines. i think that has section 30 implications. >> i would think the court could try to make clear is not the specific statutory terms or this first amendment characterization is prope thcourt can very clearly outline that. >> thank you. >> i hear you struggling valiantly to set aside other

kinds of applications. i guess c't figure out why those other applications ar't in this case. i think florida defended the law as the net choice challenged it. brought a special challenge. never understood that. they understood that to mean that that choice is right in this case and that number to come in the choice has to -- we have a difference of opinion on how you say it. but that burdeiso show that there are either no valid applications of law or thath law has a legitatsuite. ife uld identify other applications. if we se roads in which labor and money services or what not to be regulated, i don't

understand why that doesn't mean that choice has not met its burden and so that is the answer. >> you 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 e engaged. >> the question isf it is the choice is burden to have preste the case to us in that way. if we don't have the information, don. >> we don't have a particular state and how you think about your own litigation. he should oboth sides. that is clearly the central aim of this law. it is on the core function of

the website that principle contains user generated components. we could peek around the corne and find some psible valid application. it could go down a complicated road. >> the cfuon is that the look on his face is really brd. we have said that. nyeople have noticed it could apply to all sorts of ings. i appreciatell that but we have a special challenge. and to the extenenre 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 have some sympathy here. i have been working with my team to s i doesn't -- does the seam cer direct messaging? we think there is a lot of ambiguity -- not resolve the central issue. wld require these by forms that are created the compilations of third-party speech. >> thankcounsel. rebuttal? fst on the procedural posture, the fact that tres no record in this case ishe choice fall.

we wanted to slow it down. we even offered to voluntarily stay below wlee did that. they say we want to go ft and oblige them. erwere no meaningful oppounies to take the discovery. tried to say let's litigate this on appeal and they said no, we want to stay discovery. this court obliged. the fact that there is no record is not 44, is there fall. ancorary to what my friend sa, does apply. right before that is the definition of the key platform. if we reent a journalistic enterprise i don't think thatf , that broadcast you did last

week, th icovered. it is not just gmail, it is what's at. the consequenc of my friends arguments are really quiet suite. that even a traditional commentary hashe first right against the sensor. i guess that means verizon could turn it over tomorrow. thatou have sweeping consequences. verizon has no message. that principle idiinct from what my friend from the united statess ying. she is talking about big range material on the website. that did not sako whether they had a competition all right to censor.

just because you have toar content, you can still arrange it. >> it ignores the distincon between the organizational function. they have to keep it separate in their mind. >>