philosophical debate you heard at the court. >> what could the ramifications be depending on what the court decides this summer? >> it is very hard to overstate what the ramifications could be if the supreme court upholds the florida law and says the government can in fact tell large social media companies what content they can post on their sites. the companies themselves are saying this will be an economic death spiral for us. no one will want to come to our sites. we are essentially being forced to host unethical content that violates our policies that we do not agree with because we have policies and systems in place to get rid of a lot of this stuff. things like posting about terrorism or other criminal activity, pornography, etc., will basically junk up their forums.

that will make the product a lot less desirable. on the other hand, the state of florida says it would be a huge when against censorship. the idea that individuals should be able to post to their political views, whatever they may be, on these sites. that it is their first amendment rights to do so. the stakes in this case are pretty big and we will see what the supreme court will do. >> jimmy hoover is a supreme court republican at the national law journal. thank you for the insight. >> thanks. 22-277, moody versus netchoice. mr. whitaker? >> mr. chief justice and may it please the court. internet platforms today control the way millions of americans communicate with each other and with the world. platforms achieve that success by marketing themselves as neutral forums for free speech. now that they host the

communications of billions of users, they sing a very different tune. they now say they are in fact editors of their users' speech, rather like a newspaper. they contend they possess a broad first amendment right to censor anything they host on their sites, even when doing so contradict their own representations to consumers. but the design of the first amendment is to prevent the suppression of speech, not to enable it. that is why the telephone company and delivery service has no first moment right to use their services as a chokepoint to silence those they disfavor. broadly facilitating communication in that way is conduct, not speech. if verizon asserted a first moment right to cancel disfavored clients at a whim, that would fail. social networking companies are in the business of transmitting their users' speech. their users are the one who create and select the content

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

platforms and it would be easy enough for a platform who's affected to bring it as an applied challenge. would you comment on that? or at least address the fact that this is a facial challenge. >> certainly, your honor. i think that's a significant aspect of this case. it comes to the court on a facial challenge which means the only question before the court is whether the statute has a plainly legitimate sweep. i 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 bringing an overbreadth challenge, they would have to show serious third-party -- >> how would they do that if when they 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 comers and content, much like a traditional common carrier. as a traditional common carrier consistent with the first amendment would be subject to hosting requirements, nondiscrimination requirements, we think the platforms satisfy that characterization which are absolutely would give this statute a plainly legitimate -- >> this is such an odd case for our usual jurisprudence. it seemed like your law is covering just about every social media platform on the internet. we have nontraditional social media platforms like smartphones and others who have submitted a

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

the state when it writes a law also broad that it indeterminate? i >> >> don'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 about the breadth of the law. the legislature did define the term social 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 with large revenues and subscribers and the like, but the breadth of the law is narrowed by the fact that the substantive provisions of the law are regulating websites that host user generated content. that is what the substantive due -- the legislature defined the -- >> so let's talk about etsy.

that is a marketplace. i will try, in some ways it is like an online bookstore, online magazine, online newspaper, online whatever you want to call it, and online supermarket. but it's not, because even though it has infinite space, it really doesn't. viewers, myself included, or users, can't access the millions of things that are on the 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 span. so are they. but let's look at etsy. etsy is a supermarket that only wants to sell vintage close. it will and does limit user

content. it's a free marketplace but it says to the people who come onto its marketplace, we only want this kind of product. they are going to have to censor, they are going to have to take people off, they will have to do all the things that your laws say they 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 broad application of this law that affects someone who all they want to do is sell a particular kind of product, and they have community standards and they tell you they don't want you to curse, they don't want you to talk politics, they don't want you to do whatever. all they want you to do is sell your product. but if they are a public marketplace, which they are, this law would cover them.

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

>> in prune yard versus robbins, this court held that the state of california could regulate the speech activity of a shopping mall which was hosting speech. >> but not inside the stores. we said that they could come, but if they go inside the store, we 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 we are permitting others to speak, we will let this speaker speak anything he or she wants 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 speech and some expression as an incident to some other commercial and provide -- enterprise and that makes etsy's speech interest

even weaker. >> you began your presentation talking about concern about the market power and ability of the social media platforms to control what people do. your response to that is going to be resizing the power of the state to control what goes on on the social media platforms. i wonder since we are talking about the first amendment, whether our first concerns could be with the state, regulating with what we have called the modern public square. >> i think you certainly should be concerned about that, your honor. what i would say is that the kind of regulation the state of florida is imposing is one that is familiar to the law when you have businesses that have generally opened their facilities to all commerce and content, this is the way it has worked for centuries.

if you were an innkeeper and held yourself out as open to the public, you could be permitted to act in accordance with that voluntarily chosen business model, so i think the court should proceed carefully, but one thing that's important to keep in mind is there is a first amendment interest in ensuring that large, powerful businesses that have undertaken to host massive amounts of speech and have the power to silence those speakers, the state has a first amendment interest in ensuring the free dissemination of ideas. >> is there any aspect of social media that you think is protected by the first amendment? >> yes, your honor. i can certainly imagine a platform that would be subject to this law that would indeed have first amendment rights. we point out in our brief that if you had an internet platform,

that indeed had a platform driven message was selective on the front end, democrats.com, i think it would be a different analysis compared to a company like facebook or youtube who is in the business of basically trying to get as many eyeballs on their site as possible. >> but why is it different? when we had the parade case, we said they don't have a lot of rules but they have some rules. we are going to respect the rules they do have even though they let a lot of people come in. they don't let a few people come in and that seems to be important. similarly here, facebook, youtube, these are paradigmatic social media companies and they have rules about content. you can't have hate speech. you can't have misinformation with respect to particular subject matter areas.

somebody can say maybe they should enforce them even more than they do, but they do seem to take them seriously. they have thousands and thousands of employees who are devoted to enforcing those rules . so why aren't they making content judgments not quite as explicit as the kind in your hypothetical, but definitely they are making content judgments about the kind of speech that they think they want on the site and the kinds of speech they think is intolerable. >> there's a lot in there, your honor. maybe i can start with the hurley case. in hurley, you had a parade -- >> may be start with a more general question. 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 always

conducted their businesses subject to general rules of the quorum. i think the fact that the platforms have general rules of decorum, upwards of 99% for all that content moderation, that's a product of the fact that they host so much content. the fact remains upwards of 99% of what goes on the platforms is passed through without review. they have spam filters on the front end and the like. >> that 1% seems to have gotten some people extremely angry. the 1% that's like, we don't want anti-vaxxers on our site or we don't want insurrectionists on our site. that is what motivated the laws and that's what's getting people upset about them. other people have different views about what it means to 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 it'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 the advertisers think it's their speech or whether they just disagree. there are advertisers and people angry at speech who don't get a heckler's veto on the law. we know the fact that a hosting decision is ideologically charged and causes controversy cannot be the end of the game. i think rumsfeld versus fairwood would have had to come out the other way. in rumsfeld, the law school felt strongly that the military were being bigots and they did not want them on campus and yet this court did not look to the ideological controversy surrounding those decisions. instead it looked at objectively

whether the law schools were engaged in inherently expressive conduct. >> it looked at the fact that the schools were getting money from the federal government. the federal government thought, if they get our money, we have to allow military recruiters on campus. i 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 reach the conclusion that what was going on was not first amendment protected conduct. you were willing to spot them at the question would be exactly the same if it were a direct regulation of speech as opposed to a funding condition. i absolutely think the analysis in that case directly speaks to this. >> can i ask about a different

precedent about what we said in buckley? this picks up on the chief justices earlier comment about government intervention because of the power of the social media companies. it seems like in buckley in 1976, a really important sentence in first amendment jurisprudence, the context that the government may restrict the speech of some elements of society to enhance the relative voice of others is wholly foreign to the first amendment and that seems to be what you responded with to the chief justice. then in tornillo, the court went on about the power of newspapers and the court said they recognized the context about best changes placed in a few hands, the power to inform the american people and shape public opinion. that had led to abuses of bias and manipulation and the court accepted all that but still said that wasn't good enough to allow

some kind of government mandated fairness to apply. how do you deal with those two principles? >> first of all, if you agree with their frontline position that what is being regulated here is conduct, not speech, you don't get into interest and scrutiny and all that. the law advances the first amendment interests that i mentioned, but that that interest that our law is serving, if you got to a point in the analysis that we fired consideration of those -- >> do you agree if speech is involved in those cases, that those cases mean they lose? >> no, i don't agree with that. the reason is because the interests that our laws serve our legitimate, and it's hard because different parts of the law serve different interests. i think the one that sounds and you're concerned that his most

directly implicated would be the hosting requirement applicable to journalistic enterprises. one provision of the law says that the platforms cannot censor, shadow band or deplatform. journalistic enterprises based on the content of their publication or broadcast. that serves an interest similar to the interest that this court recognizes as legitimate intern -- in turner. when congress imposed on cable operators must carry obligation for broadcasters. as a broadcaster, what the court said was there was not just a legitimate interest in promoting the free dissemination of ideas through broadcasting, but it was indeed a highly compelling interest. i think the journalistic enterprise provision serves that interest. there are other interests the law serves. the consistency provision is a consumer protection measure.

the consistency provision which is the heart of our law, just says to the platforms, apply your content matter ration policies consistently. have whatever policy you want, but apply them -- as a printing presses and movie theaters about what they show, bookstores, newsstands? be consistent in what kinds of content you exclude. could that be done? >> i 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 they are offering their service to users. i don't think that paradigm really fits in what your honor is talking about. we agreed, we certainly agree that a newspaper in a bookstore is engaging in inherently

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

activities. >> but i guess what i'm saying is, you mentioned the fair case. we did not say that law schools at -- as a categorical manner are always engaged in unprotected speech. we looked at the particular thing. the law school was saying we don't want these certain entities in it. i hear you suggesting that we can just say facebook is a common carrier and therefore 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, your honor. 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 the law had plainly legitimate sweep is we are talking about the social networking companies, activities and content 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 the fair case. is that what you are saying? >> i don't think so. i don't think it would map onto our theory in the case. i'm not totally aware of all the facts of linkedin. >> i think that's a problem in this case. we are not all aware of the facts. >> exactly. that is one of the reasons why the spatial challenge has been

very confusing to defend because we kind of don't know what to defend against. >> on that score, we have a bit of a challenge because different legal principles apply in different circumstances and there are many different defendants or plaintiffs here with different services so that's a complicating feature on our facial challenge. here's another one for you. what about section 230? which preempts some of this law. how much of it and how are we accounting for that complication ? >> why don't you answer the question and then we will move on? >> i think the court should answer the question presented a guess. >> but how can we do that without looking at 230? >> some of this was briefed at

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

the mall wanted to create a certain environment and yet the court said that they did not have a first amendment right to do that. >> i think what i was more interested in is we are using broad terms like content moderation, and throughout the briefs you have shadow banning, de-prioritizing and all sorts of things. i guess with these facial challenges, i always have a problem that we are not talking about anything specific. in the applied challenge, at least we know what's in front of us and what your interpretation or the states interpretation of the law is in that case. now we are just speculating as to what the law means. so i'm just trying to get more specificity as to what the

speech is in this case. that they are censoring and i don't know of any speech interests in centering other speech, but perhaps there is something else. >> i don't think they do have, certainly not a speech interest. at most i think there's interest in the allegedly inherently expressive conduct of speech. we do not think they have 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 below? >> i could not find the word overbreadth in any of their pleadings. >> where in the record should i look to find a list of all the

platforms that are covered by the florida statute? >> i'm afraid that doesn't appear in the record because i think the platforms are fairly cagey about which of their members they thought the statute applied to, that the record only contains three platform specific declarations. at sea, facebook, and youtube. that's part of the problem in this case, the record has not been fully developed to answer the question so we are kind of litigating in the dark. this was at a preliminary injunction at breakneck speed without the state having a chance to take discovery. >> i will ask mr. clement that question as well. as to the platforms that are covered, where in the record what i look to find a list of all of the functions that those platforms performed?

>> i'm not aware of an all-encompassing list of all the functions deplatforms perform. there are three platform specific declarations and general declarations to talk about members more generally, but it is not sort of the all in one place. >> does your law cover websites that primarily or exclusively engage in non-expressive conduct? >> i think it does cover websites that engage in primarily non-expressive conduct. we would characterize the social networking platforms engaging in primarily non-expressive conduct insofar as they are hosting speech just like a traditional common carrier is not engaged in expressive conduct 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 expressive conduct and proportion of non-expressive conduct? how should reanalyze that -- we analyze that? we need a numerator and denominator. what would they be? >> i don't think the standard would have a new minute -- numerator and denominator. we would viewed as whether the statute has a plainly legitimate sweep. the numerator denominator 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 not find 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 the paradigmatic social media companies, newsfeed postings, facebook, youtube, twitter/x. suppose that i say, take this as a given, you can argue with the fact is, but don't. [laughter] suppose that i say for the most part, 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 content based exceptions which the companies take seriously. let's say we think that misinformation of particular kinds is extremely damaging to society. 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 this. if they will only apply to a small percentage of the things people want to post, for the most part they are open for business. but we are serious about those content-based restrictions. so in that world, why isn't a classic first amendment 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 basically like in an editorial 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 intermediate 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 are saying we are a big forum for lots of messages but not for those kinds of messages, we want to exclude those kinds of messages. why isn't that a judgment? >> the court held otherwise i think in pruneyard because it was an editorial policy about leaflets -- >> that was just about leaflets and the small owner did not have expressive views. i'm taking this as a given that utube or facebook or whatever has expressive views. there are particular trends of expression defined by content that they don't want anywhere near their site. >> but you still would have to look at the objective activity

being regulated, namely censoring and deplatforming and ask whether that expresses the message. because they pose so much content, an objective 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-world example. do you think twitter users one day woke up and found themselves to be x users, and the content rules had changed and their feeds changed, and suddenly they were getting a different online newspaper, so to speak, every morning. a lot of twitter users thought that was great and a lot of twitter users thought it was horrible. in fact there were different content judgments 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 have a 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 ban leafleting at the mall in pruneyard and that does not give them a message. the reason is if they are not carefully selecting the content in the newspaper, they don't have a message in the mere existence of the content. >> justice gorsuch. >> i just wanted to give you a chance to finish up on the section 230 point. i think it is 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 proceedings whether 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 otherwise objectionable. there's a nice article on this in the journal of free speech law. we have not briefed this. the second point i 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 this 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 follow up on justice kagan's line of questioning, you have analogized common carriers and telegraphs in particular. why is that an apt analogy here? >> because the principal function of a social media site is to enable communications, enabling willing speakers and listeners to talk to each other. it is true the posts are more public, but i don't think verizon would gain any greater right to censor since we -- simply because there was a conference 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 market power. let's not an element of traditional common carrier regulation and some entities that are regulated as common

carriers like cell phone providers operate in a fairly competitive market. >> justice kavanaugh, in your opening remarks, you said the design of the first amendment is to prevent suppression of speech. you left out what i understand to be three keywords in the first amendment, by the government. do you agree by the government is what the first amendment is targeting? >> i do agree but i don't agree there is no first amendment interest allowing the people's representative to promote the free exchange of ideas. this court has recognized that as a legitimate first amendment interest in the turner case and going back to the associated press case. >> in the turner case, the court emphasized was unrelated to the 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 mean by unrelated and suppression of speech? >> we don't view our law as advancing interests related to the suppression of speech. think the interest in protecting journalistic enterprises from being censored, from msnbc being censored because an internet platform doesn't like a broadcast it showed on the station the other day, that's just interest in preventing it from being silenced. it is giving them a chance. >> on the editorial control point, you want to fight the idea, and i understand editorial control is the same as speech itself and you emphasized pruneyard over and over. but we have a whole other line

of cases like hurley, pg&e, turner, which means it is protected by the first amendment. i understood the line between pruneyard on one hand 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 platforms are engaged in editorial control. the recruiters -- the law schools in rumsfeld versus fehr argued they are exercising editorial control when they booted military recruiters off campus. this court had none of it. the court does need to draw a line i think between selective speech that is exercising editorial control and a speech host like a common carrier or like the mall in pruneyard that

can be prevented from silencing its customers. >> on the selective speech host point, i think you made the point to justice kagan they don't eliminate much of speech, but didn't we deal with that in hurley as well and say that the mere fact that the organizer usually took almost all comers with the irrelevant first amendment interests and editorial control over who participated in the parade? >> i guess i think hurley turned more the fact that the activity was a st. patrick's day parade with an expressive purpose. so perhaps it can be expressive and more lenient. i would note the court in hurley relied on the fact there was front end selection of the members of the parade and the committee that was responsible for it was doing front end selection. i think selectivity is totally

relevant to who is the speaker and we analogized in the brief where this court has made the same point in a variety of cases. what you have said is that 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 that are the traditional social media platforms like youtube, instagram, tiktok, twitter/x, it all turns on editorial control. it seems to me when distinction between this and fair is that these companies are speech hosts. the law schools in fair were hosting job fairs. they were not gathering a bunch of people and saying present your ideas.

these companies are hosting speech. why isn't that more like newspaper in tornillo? >> it is different but that's why we leaned on the common carrier analogy which i think reflects that a speech, you can't just say it is a speech host and go home. if that were true, verizon could censor. >> put aside common carrier for one second. just tell me why this doesn't look like the same editorial control we see newspapers exercise. >> because the platforms do not review -- it is a strange kind of editor that does not actually look at the material that is going on it's comp -- compilation. they say they did not even know that isis was on their platforms doing things. >> is it because it's not

humanized? -- human eyes, not humanized. as justice kagan was pointing out terms of service, we want this kind of site. some say for example tiktok might have boosted pro-palestinian speech and reduced pro-israel speech. that's a viewpoint and if you have an algorithm do it, is it not speech? >> it might be, but in twitter and gonzales, 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 here. let's assume what they're saying here, that they are organizing it in ways that express an interest. do you think it would be editorial control in a first amendment sense? >> no. i agree with justice jackson that it is important to separate

functions are the organizing function from the hosting function. simply because they are required to host certain speech, that does not meaningfully prevent them from organizing that speech . i think the court has to separate out regulation of the organization from simply preventing them from censoring. and the reason, it is different from a newspaper, is two principle points. base constraints are something that this court in fair and in tornillo relied on as one factor that's relevant. social media companies don't have space constraints which means a requirement to host an additional piece of content is a relatively less -- >> justice sotomayor pointed out even though there may not be physical space constraints, there are the constraints of

attention. they have to present information to a consumer in some sort of organized way and there's a limited enough amount of information the consumer can 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 can'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 to pick apart what the algorithms are doing. you could imagine an algorithm that could be expressive. if the algorithms work in the manner that the court described them in twitter versus stamina, they look like neutral ways to reflect user choice and i don't think that's expression.

if it were possible to have an algorithm making a website look like a newspaper, it would be different. 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 -- depends on the 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 does not meaningfully preclude them from organizing. if they are required to carry a piece of content, they can organize it however they want generally. there are prohibitions on shadow banning and the like but they can organize it however they want. the prohibition on censorship and deplatforming is not meaningful interference with

organizing. 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 a possible state of the world under which rhythms are nonaggressive. >> let's ask about the facial challenge aspect of this. florida's law is very broad and we are talking about the classic social media platforms, but it looks to me like it could cover uber, google search engines, amazon web service, and that would look very different. justice sotomayor brought up at sea. etsy has a feed recommended for you but also has handmade goods. it looks more like a brick-and-mortar marketplace or fleamarket than a place for hosting speech. if this is a facial challenge and florida's law is broad enough to cover a lot of this conduct which is farther away

from expression than the standard social media platform, why didn't you than in your brief defend it by pointing out that there is all this other stuff perfectly fine that florida covers, we don't want a person wants to sell her goods on etsy 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 all kinds 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 platforms are not engaged in expression. >> we are making both arguments to be clear. we view etsy as not having a

significant expressive interest in applying its content moderation policy -- >> is that enough to make the whole thing fail? if we agreed, etsy it's fine, for google or amazon web service, it's fine. is that enough to say the facial challenge cannot -- >> yes, because that would give the law legitimate sweep and that's all it would need. >> i feel like there's a lot of indeterminacy in this set of facts and circumstances as justice alito try 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 about 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 a state court determination interpreting that provision, do we? >> the law was not allowed to go into 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 rejecting the facial challenge. in the washington state grange case, the fact that the state courts have not had an opportunity to construe state law being attacked on its face as a reason to reject -- >> do you think the statute could be susceptible to multiple interpretations? i can imagine even the consistency provision, what does it mean they have to do this consistently? they have to apply the same standards or substantively result in the same level of preference? i can imagine you could interpret that more narrowly or broadly. >> there may be interpretive

questions. on that point, i don't think there is any ambiguity. the provision says a social media platform must apply censorship, deplatforming and shadow banning standards in a consistent manner among users on the platform. those standards are the things that the social media company must, under a separate provision, publicly disclose, which was a disclosure requirement the 11th circuit upheld. >> yes, i appreciate that florida's position on the law is perfectly clear. >> but i think that language is clear that the baseline for comparison is not an abstract notion of fairness. >> ok, so let me ask about that. we get to the point that we disagree with -- disagree about whether -- we are trying to determine which standard applies, the level of scrutiny.

but i'm a little confused about is how we evaluate the 30 day restriction with respect to determine whether it is content-based or content neutral. i appreciate that on its face it doesn't point to a particular type of content, but i suppose it's applied in reference to content? that restriction is regulated and can only be in terms of engagements every 30 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. in the city of austin's case, the court held that because a regulation requires consideration content does not make it content-based. there's nothing on the face of that provision that targets any particular message of the platforms. to zoom out on the 30 day provision, that is really an

adjunct to the consistency provision as i understand it. the point is it would not do much good to require the platforms to apply policies consistently if they could just sort of constantly change them. >> i understand, but in the application of even the consistency provisions to determine whether they are not doing it consistently, aren't we also looking at content to some extent? i think it's not necessarily as easy as it might seem to determine whether or not these provisions are content-based or content neutral. >> i don't think the fact that it requires consideration content makes it contest -- content-based. there's nothing in the 30 day provion for that your honor. >> thank you. >> thank, counsel. mr. clement. >> mr. chief justice and may it please the court, florida's effort to level the playing field and fight the perceived

bias of big tech violates the first amendment several times over. it interviewers with editorial discretion, compels speech, discriminates on the basis of content, speaker, and viewpoint, and it does all this in the name of promoting free speech, but loses sight of the first principle of the first amendment, which is it only applies to state action. florida defends its law as you heard this morning principally by insisting there's no expressive activity being regulated. that 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 censoring speakers in content. if you're telling the websites that they can't censor speakers, you can't turn around and say you are not regulating expressive activity.

it is all over this law. that brings it squarely within the teaching of tornillo, pg&e and hurley. all three of those cases teach you cannot have forced dissemination of third-party speech and they reject considerations of market power, misattribution or space constraint. reno and 303 creative make clear those principles are fully applicable on the internet. indeed given the vast amount of material on the internet in general and these websites in particular, exercising editorial discretion is necessary to make the websites useful for users and advertisers. the closer you look at florida's law, the more problematic the first amendment problems become. it singles out particular websites in plain violation of minneapolis star. provisions that give preferences to political candidates and journalistic enterprises are

content based in the extreme. i welcome court questions. >> mr. clement, if the government did what your clients are doing, would that be government speech? >> it might be government speech, but i think it would be unconstitutional government speech. with the government is doing is exercising editorial discretion to censor some viewers or some speakers and not others. i think that plainly violates the first amendment and that is the thrust of this court's decision in the manhattan community cable case which is that in this area, looking for state action is critical. there are things that if the government does, it is a first 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 and pg&e, that is the thrust of tornillo. and all those cases, a private party did not want to convey and disseminate the speech of a third-party. in every case, the government said we have a really good reason why this private party has to disseminate the message of a third party. >> i've been fortunate, or unfortunate to have in here for most of the development of the internet. the argument under section 230 has been merely a conduit. that was a case that back in the 90's and perhaps the early

2000's. now you are saying that you engaged in editorial discretion and expressive conduct. doesn't that seem to undermine your section 230 arguments? >> with respect>> justice thomas, obviously you were here for all of it, i was not here for all of it, but my understanding is my clients have consistently taken the position that they are not mere conduits in congress, in passing section 230, looked at common law cases. if you are a mere conduit, it means you are free from liability, but if you start becoming a publisher by keeping bad content out, you no longer have common-law liability protection. as i understand 230, the whole point was to encourage websites and other regulated parties to essentially exercise editorial discretion and keep the bad stuff out of there.

as a result, what congress said is, they did not say you are still conduit -- conduit. they said you will still be treated as a publisher. congress recognized what clients were doing which would look like publishing, and wanted to protect them against that to encourage them to take down the bed material, that if these laws go into effect, would be foed to convey on our website. >>an i ask you about the facials nature of this? my understanding is that to strike down the statute is unconstitutional, then we would have to conclude there's no possible way for the law to govern these entities and their conduct. >> with all due respect, i don't think so. the question is whether or not the statute has a plainly legitimate sweep. if there's one little

application, that's enough to save the statute. >> but whose burden is that? i thought it was your burden to 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 statute does not have a plainly legitimate sweep. it is our position, and we did make this argument below, this statute has no constitutional application and part of that is because none of the statute, none of the part that's in front of you today, applies unless you are a covered website. >> 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 broad. how can you say that?

>> because the statute only applies to websites 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 regute 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 viewpoints? > they might be able to do that. that is obviously not something in the square focus of this litigation, but lower courts -- >> 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 all, because it applies to google which qualifies over the threshold. it does not apply to competing email services that provide identical services. that alone is enough to make every aspect of the statute unconstitutional. >> how can that be? it is not unconstitutional to distinguish on the basis of bigness. >> it is when you regulate expressive activity. the statute applications. >> 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 company, because of their views, and the only issue was it is not worth it to regulate a lot of small sites,

you know, we only want to go after the big sites that actually have many millions of users, you think that is a first amendment 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 say you cannot go after big companies under the first amendment. >> all you have to do is go after all social media websites or all websites. you don't have to draw artificial distinctions. that just so coincidentally happened to coincide with the websites you think have a bias you are trying to correct. two remind you -- >> and i took that out of the question. say they were not going after these companies because of bias or they thought they had a slant, it was just going after the biggest companies because those are the companies with the biggest impact and the most users. how could that be a first amendment violation? >> because 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 same for a website with nine 9 million global users as it would be with a website with 100 million global users. i think there are red flags overall of the distinctions drawn in the statute. if you look at the statute more closely, my goodness. the political candidates 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 platforms 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 messages are protected under the first amendment. the courts that have looked at

things like whether gmail is a common carrier have actually felt -- there's a case it involving the rnc that has a specific holding that gmail is not a common carrier. much of the logic would apply to direct messaging. obviously if this were a statute that tried to address my clients only to the extent they operate at the job board, this would be closer to fair and i would have a harder case. >> the government says your reef sometimes errs in to adjusting conduit type activity is always expressive 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. >> but how they use it, and their speech. the content of their speech. it has something to do with religion or politics or race -- you can editorialize and use that editorial power to suppress that speech, right? >> that gets to a very hard question. i think it would be speech. >> so the answer is yes. we can delete emails, delete direct messages and we do not agree based on politics, 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 display just to african-american authors? probably yes. >> so it is here too.. >> there is at least first amendment activity going on and you would apply the full protection clause to it. you would decide whether that is permissible or not.

obviously i think this case involves editorial decisions, at its heart, and one thing i want to make clear on the facial challenge point to understand how the case came to be, as you heard today, 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 injunction stage. we only have the argument if you hold that this is not expressive activity. they did the same thing in the 11th circuit. we have a footnote making clear on the pages exactly where they did this. they basically said we want to win this on the threshold question that this is not expressive activity, or we do not want to get into the rest of it at this point. we will have discovery and we will have the preliminary injunction. >> 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 about uber discriminating 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 that. the way the statute would define it would be comments if uber -- betsy, it is the same way -- etsy, it is the same way. you have the ability to put

comments on the seller . etsy does not want certain comments on that. they want to clean that up to be a place for people to come look at materials. when you think about applications of this statute to some of the things that seem less obvious, it is really focused on that expressive aspect of it. obviously the core of the statute, the motivation for the legislation, the examples my friends from florida include in their own petition appendix are about more expressive activity by youtube and facebook's of the world, excluding certain speakers, and they want to override 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 social media platforms. don't we have to consider these questions justice alito is raising about uber and at -- and etsy?

it make me nervous, i'm not sure i agree about gmail. it is not obvious to me anyway that they cannot qualify as common 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 all these unconstitutional applications and by every floridian, these provisions enforced by every floridian being able to go and get $1000 in civil penalties, do you want that antithetical under the first amendment to go into effect while we sort out interior questions? do you wanted to be put on hold while we can litigate this stuff and it turns out there's a couple applications that are ok or somebody wants briefing just on the question of whether direct mail is a common carrier?

>> is that? >> absolutely you can escape that posture. you affirm the preliminary injunction which is in place, if 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 going to put all our eggs in the expressive activity basket. they couldn't have been more clear about that below and in the seventh circuit. you say this law which has all the first amendment problems, we are going to put on hold and then we can sort out -- >> if that is the case, to what extent is it the result of your own litigation decision? you could've brought as applied challenge limited to the platforms you want to talk about, facebook and youtube. but instead you brought a facial challenge and you claim it is also susceptible to analysis under overbreadth.

you had to show you had a probability of success on your facial or overbreadth challenge. you cannot now shift and say it was a good preliminary injunction because it is fine as applied to the platforms i want to talk about. let's forget about the other platforms that might be covered. >> first of all we did all of that and we won. second of all -- >> did you bring an as applied challenge? >> no, because we think this statute is unconstitutional in all its applications. >> exactly. you suggested it could be shorted out on remand. but on remand it is still a facial challenge. >> it is still a facial challenge. you are right. >> you think all the applications are unconstitutional. >> i do. definitions are problematic. >> it is done. if you should prevail, under preliminary injunction, for

practical purposes, it is finished. there's no opportunity to sort out anything on remand. >> there's the whole merits. we've shown the likelihood of success on the merits. we have not won on the merits all or nothing. >> can i try another way? i asked what was the standard and you are saying you think all applications are unconstitutional, which i think is to establish. if we come up with some scenarios in this context in which we can envision it not unconstitutional, why don't you lose? >> that is not the standard with all due respect. this court has never applied the salerno standard in a first amendment case and this would be the worst in this court's history if you started down that 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 sections are pernicious from a person admit standard.

-- from a first amendment standard. there is no constitutional application to that. >> so i understand precisely, your position is that the only issue before us is whether or not the speech that is regulated qualifies as -- not to beg the question. the expression that is before us is not speech. >> that is one way to put it. you have questions presented, you're going to be able to decide whenever you think is fairly included. i'm pointing out as an artifact of the way my friend litigated this case you do not have a record on anything that maybe interesting for intermediate scrutiny and it is not my fault. it is based on their representations to the courts below that they did not want to get into intermediate scrutiny. they 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 problems. the reason is the 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 viability protection and first amendment status do not go hand in hand. i do not think the parade organizer in hurley was responsible for parade floats that went into its parade. historically, news stands and others are not responsible for the materials. i do not think you have 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. it is terrorist material. other cases it is kids telling other kids you should do this tide pods challenge. some cases it is kids that are encouraging other kids to commit suicide. there is a whole bunch of stuff that we think is offensive within the terms of 230 that we are exercising editorial discretion. >> 230 does not necessarily touch on offensive material. it touches on obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable. >> that last one. >> well. [laughter] >> we can have a fine debate about the last sort of -- how much of that, what is the latin, the company you keep? we can have that fine debate in

some other case. >> they use them on doctrine, do a lot of work. let's put that aside. tell me again, exactly what the expressive conduct is. that for example youtube engages in. i'm sorry, twitter, the platforms -- twitter deplatforms someone. what is the expressive content and to whom is it being communicated? >> when they deplatform some buddy for violating terms of use or continuing to 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. other 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 material people see on their individualized, when they tap into facebook or twitter or youtube. what they are not going to see is they are not going to see material that violates the terms of use. they are not going to see a bunch of material that glorifies terrorism. they are not going to see a bunch of material that glorifies suicide. >> is there any distinction between action or editing that takes place as a result of an algorithm as opposed to an individual? >> i don't think so, your honor. these algorithms do not spring 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 algorithm which teaches itself and has very little human intervention? >> you still had to have somebody who created the universe the algorithm is going to look at. >> who is speaking? 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 these massive volumes. the reason they are doing this and of course supplementing 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 shows you the volume of editorial discretion. >> sorry to keep going. exactly what are they saying? what is the algorithm saying? i don't know. what is it saying? is it a consistent message? usually when we had hurley, it

was there parade and they did not want certain people in there parade. you understood that. what are they saying here? >> they are saying facebook does not want pro-terrorist stuff on our site. >> we are not talking about terrorists here. those are not terrorists. >> we actually are talking about terrorism here. these laws go into effect -- >> i thought that was a climb. as i understood florida, they said one provision in the access , nothing that is inconsistent with section 230. it is consistent with section 230. there are things, if you have a video on how to build a bomb to blow up a church or something, they maybe 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 thin teenage bulimia and they want to keep that off their site , 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 forum. >> justice alito? >> there's a lot of terminology bouncing around in these cases. out of curiosity. one of them is content moderation. could you define that for me? >> content moderation to me is just editorial discretion. it is a way to take all the content that is potentially posted on the site, exercise editorial discretion in order to make it less offensive to users and advertisers. >> isn't anything more than a euphemism for censorship? let me ask you this.

if somebody in 1917 was prosecuted and thrown in jail for opposing u.s. participation in world war i, was that content moderation? >> if the government is doing 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 between the two. >> f 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 there are different functionalities with websites. so some host news feeds, facebook.

some post like justice barrett was talking about. others, gmail or -- where they are just letting people contact each other direct messaging. i was thinking, this law seems to cover all of that. it is so broad. might have some plainly legitimate suite. it might be ok to require direct messaging to give you notice, to be consistent, to pay attention to thirty-day registration. some of these provisions might be ok for those functions. you are saying to me that is not true. can you articulate very simply -- very succinctly why you think at this stage on a facial

challenge we can say there is no plainly legitimate sweep with this particular law after we sort it all out below, we will still survive? i think the court below says if you try to take that out from justice hagan's answer -- justice kagan's answer, maybe i don't want to. it because this was passed with discrimination in mind? that is what the court below say. >> the court below said that and that would be sufficient basis. the law is also shot through with content based provisions. i think that is enough to take out the law. every provision we 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 termination or other discriminatory influences. if you do that here, you don't have to get past the governor's official signing statement to understand the restrictions on this statute. it is one thing to say they are only getting the big companies. when the governor is telling you we are going after the viewpoints of the silicon valley oligarchs, all of a sudden limiting it to the biggest companies starts to tell you this is targeted like a laser beam at 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 a law that was focused , it excluded the kind of curated 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 venmo and dropbox and uber, all of those things, a site could not discriminate on the basis of viewpoint. just as may be a site could not discriminate on the basis of race or sex or sexual orientation or what have you. so it just added viewpoints to the list. wouldn't that be all right? >> i actually don't think it would be. all of those things are in the expressive is this and -- >> suppose it did not say viewpoint. it would just say you cannot discriminate on the basis of the usual protected characteristics. is that all right? >> that would probably be all right but it would not save the whole statute. >> that is just on this. it is a statute about -- it

excludes youtube and facebook. the facebook newsfeed. direct messaging, then mow. those kinds of things -- we are not going to let you exclude on the basis of race and sex and we 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 first amendment right to have a black authors table for black history month -- >> also viewpoint. >> when you throw viewpoint in would have to ask my clients whether they challenge that but that is not the statute we have here. >> what i'm saying is in part it is the statute you have here. that gives you your plainly legitimate suite. when you run a service when you are not speaking, unlike a

facebook feed where you are -- your editorial discretion argument is good because the platform is engaged in speech activities. when you are running venmo you are not engaged in speech activities. when you have to serve everybody irrespective of whether you like their political opinions are not , it seems you have a much less good argument. but this statute also says that doesn't it? >> not really. we are in danger of losing sight of the actual statute. let me take you to index 97 a and the definition of censor. it includes any action taken by a social media plot from to restrict, edit, inhibit publication or republication of, suspend the right to post, remove or post, add addendum to any material posted by a user. the term includes actions to inhibit the ability of the user to be viewable or interact with another user of a social media

platforms. censor is all about the activity. they give essentially political candidates and journalistic enterprises a right to nondiscrimination so they are going to pop up even though -- i have no interest in politics. i just want to look at feeds about italian bicycles. i'm still going to get floor to politicians? that is what the statute does. you go through, shadow band -- shadowban is all about content. journalistic enterprises get pride of place. then there is how you display the content. maybe the 30 day provision you could sort of say that applies to uber. even then if uber wants to change comment policies because all of a sudden they did 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 -- rude way, why wouldn't they

change the 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 talking about. >> thank you. >> justice gorsuch. justice kavanaugh. >> to pick up on the word censorship because it is being used lots of different ways, when the government sensors, the government excludes speech from the public square, that is obviously a violation of the first amendment. when a private individual or private entity makes decisions about what to include and what to exclude, that is protected generally, editorial discretion. even though you could view the private entity's decision to exclude something as, quote,

private censorship. >> absolutely. that was the thrust of this court's decision in halleck. the earlier case may have been incomplete lead different if that was an official city of boston parade. the city of boston decided to exclude the group. the reason the case came down the way it did unanimously is because it was a private organization exercising its first amendment right to say we don't want this in our parade. >> how does 303 fit in? >> 303 is further evidence -- obviously where 303 is most relevant is that colorado in that case tried to rely on fair much the way my friends here rely on fair and this court made clear in three 03 creative. this is expressive activity. the fact that my friends best case is fair just shows how radical this statute is. this targets expressive activity

in its core. the amendment said to the law schools you have to give military equal time in the classroom, the case would've been 9-0 the other way. that is what florida is trying to do. >> on the procedural posture, this is important to try to understand what is exactly before us. you gotten questions on this. i want to nail it down for my benefit. you said that they came in and deposed the pi -- and 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 discovery on both sides and then in 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 will go on. 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 have alluded to it. i love that we have heard much about what you are concerned about. quick sweet kind of have to fundamentally change our business model. each company will make their own judgment about how they will come into compliance. they say this will promote speech. this will discriminate on the basis of content. what we might do in the interim is less do only puppy dogs. until we can get this straightened out. these same companies are getting hammered.

these laws 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 entails? >> it is not part of the port -- pulmonary injunction. targeting editorial discretion. i have not met anybody who thinks the near times is 100% consistent in his editorial policy. i think it would be the most obvious violation.

>> thank you. >> let's assume i agree with you about this.

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

judgment about what they can say in the public square but what you do with the fact that the internet is the public square? i appreciate that these companies are private companies but if the speech is occurring in this environment -- why won't the concerns about censorship apply? >> i think censorship is only something the government can do the. it is not -- it is just a category mistake. but you would worry about this if websites like the cable companies in turn has some sort of control where they could limit your ability to go to some other website and engage in speech. the way websites worked -- facebook could limit you to only 19 other websites.

facebook could dictate which 20 websites you saw. this would be a lot more like turner. this court said that the internet is like the opposite of turner. there is 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 the legitimate sweet point. what is illegitimate about a government regulation that attempts to weigh this companies to apply consistently their procedures? i guess i don't understand why these anti-discriminate and principles are legitimate.

>> consistency is a government mandate when what is being regulated is expressive activity. a clear first amendment violation. some of these judgments are very tricky judgments. we will take some of the stuff, celebrating a seventh off. >> what about a 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 many times they violate my clients terms of use. we still have to carry it. not just carry it but 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, they can cause us to fundamentally change our editorial policies and have to ignore our terms of use. >> thank you counsel. >> mr. chief justice and made please court -- the first amendment protects entities that cure, arrange and present other people images and expressive compilations. if this is uphill, those parade sponsors and web designers -- it also covers social media platforms.

those platforms shape that and that expresses activity taken by the first amendment. that does not mean every business that transmits speech can claim first amendment protection for that conduct. companies that carry speech from point a to point b are not shielded by the service. that is because they are not producing any expression of their own. it is not because there are some kind of communications company exception. none of this is to say that social media platform's army from regulation. governments have an important interest in facilitating education. governments have to stay within the bounds of the first amendment. 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. government did exactly what these respondents are doing, would debbie government speech? >> and just getting the hypothetical cracked. you're suggesting the government itself would allow users to post messages on that. the thing that would implicate his first amendment was because the government might be creating something like a public forum -- antic they would all necessarily qualify. the critical difference is these platforms are private parties. >> mr. clement said the difference is that if the government does it, it is censoring. 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 government is bound by the first amendment and they can dictate what kind of speech has to appear. that could create a first amendment 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 elements, photos, videos and platforms which are private parties not found by the constitution are looking at how they want that to look. that is an inherently expressive activity.

the kind of content they think might be harmful. there is no one single message that each platform can sustain. at least it seems like their content moderation policies and body adjustment. there is still the baseline of signaling. >> you indicate that the net choice sometimes airs by suggesting the dissemination of speech is always expressive activity.

i do wonder how we are supposed to do with that fact in this spatial challenge context? particularly when many of the platforms prohibited various kinds of posts. even if the platform disagrees and they say they do not endorse and are not responsible -- it's her -- it sure sounds a lot like conduit. >> the kind of company that is literally engaged in carrying speech, transmitting it. a big difference between that

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 representing that your views don't represent theirs. nobody understands that. this is a spatial challenge again. >> i think looking at the terms of service, it is certainly true that many of the platform have generally indicated they welcome of wide variety of views. it would be incorrect to 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 promise 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 center holds true for telephones. beyond that they're minimum, they are open to all comers. that seems to be have a lot of them are representing themselves.

>> they are not creating any kind of expression to each product in providing their service. it is a government regulation. request for telegraph companies are just the opposite back in the day. quickly they curated alarm speech or tried to. a lot of political speech they did not agree with. >> whatever euphemism one chooses. >> that is the difference here. >> if the expression of the user is there, where does that leads in -- where does that leave section 230? i understood justice thomas was making this point. we are not going to treat you as publishers so long as it is not

your communication only. if it is now their communication in part did they lose their 230 protections? >> no. there are the individual user posts on the platform and that is what 230 said, that the platforms cap you have the -- held liable for it. let me interrupt you class and i think there's any basically compelled -- basic incompatibility. >> is the whole premise that

they are common carriers? that they will not be held liable in part because it is their expression? they are a for somebody else? >> to the extent that the states are turning this into an argument. that the 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 samaritan blocking provision. >> there has been a lot of talk about the case -- how it was litigated. what is available if it goes back. i would like your views on that. >> we presented our argument in this case litigating at face

value. that 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 facebook. this law is not of regulation of their 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 other applications of the law out there. to justice barrett's question, which of the court do with this? litigated one way and then it looks like there are possible applications you would have in mind. i would urge the court to take over the narrow approach here. they could control what the true social media platforms are doing to their expressive websites.

companies like uber which don't seem to be creating a possible type of 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 injunction should not be issued? plaintiffs have not shown that they were likely to succeed on their facial challenge? did they not make that argument? >> they made it but they did not go further and say and the reason for that is because it is direct messaging. >> i think it would be hard for the court to figure that issue out. >> it may be hard for us to figure out what my question was

is the 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 comfortably decide whether the overbreadth standard is bad. isn't that the fault of the plaintiffs? isn't the remedy to vacate and remand for all that to be fleshed out? i would not say 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 members recovered by this. all the functions they performed shows whether it was constitutional in every application and scope that is constitutional. >> i don't want to resist the idea and affect the analysis of the facial challenge. i don't want to stand in the way of that. with the court making clear that rick -- with respect to the lower court, mainly the idea that they can control the cremation and editorial function 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 few 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 like the 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 any student who expresses support for israel's war with hamas will be expelled. would that be censorship or content moderation? question first question would have to be for some kind of regulation that prohibits interacting in that way. if you're thinking about a public accommodations offer. >> no. i am just talking about technology. >> you could say the trade is early with sensory. lift contingent was censoring -- a candidate who wanted to publish his speech -- 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 matters only to the extent that we want to resist the orwellian temptation to recategorize offensive conduct but anyway thank you. >> general, finally understanding the argument -- let me make sure i do. when i came in, i had the reaction just as leno did. i have been thinking about what that does because i agree with you as i understand where the stage and below us to say we'll have to offer you any justification for any part because everybody -- the social media companies they are common

carriers. i think what is clear is -- where questioning that that is not true. there are many functions that are expressive that we can say our common carriers. but even if we decide to rely common carriers, the issue would be one of what is the level of scrutiny. there is no level of scrutiny we're going to address. and to any of the expressive platforming or deplatforming 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 these things -- even if it is a sort of content exclusion.

the government carrier does not have to permit unruly behavior. they'll have to throw somebody off the train if they are threatening some deals. i guess what you're saying is let's keep the injunction in place? on the application of this law and have, based on what level of scrutiny given the function. >> we think the court should hold the party to the way they eliminated this case. it is uncommon for the court to -- if i can respond on the commentary point -- 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 a platform of a common carrier

or not has some sort of significance but it is completely irrelevant to answering to first amend the question. it is not like couplers that are treated as common carriers have no first amendment rights when it comes to their special activities. that is a common carrier with a transportation passenger. but that is entitled to first amendment protection. the reason for the mandate in the common carrier scenario which poses no problem on the first amendment is there is no speech for expressive activity when carrying passengers and communication. it is entirely different that is inherently expressive. that looks just like the kind of protective the court has recognized in other cases. whether usa -- whether you say they are common carrier or not.

>> i think i want to try again on this question. i agree with pretty much everything you said. 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 of speech product. but when ford is trying to regulate gmail, we can't do that because gmail is not in the business of dividing that sort of speech on it. >> if we can assume the statue covers a variety of things, direct messaging, uber and things that are not creative speech products and we have this first amendment doctrine that says if you can find a legitimate 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 unconstitutional applications you are talking about with respect to all of these companies that are creating space -- speech products. so what do we do? >> if you were confident the particular provisions would regulate the conduct of the companies you are referring to -- i think that would hold to the theory of facial invalidity. it is not as though it said the statute -- >> i think your point. 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 obvious 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 wrong to say it can make it that much clearer. otherwise it will be right back up here an emergency' in. i think the court can decide that much. if you 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 injunction. this is backed up by $100,000 in penalties for violation. that has a huge -- hazard -- has a huge chilling 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 you could certify the 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-provoking and bring questions. when i think of orwellian, i think of the state. not the private sector. no private 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't want to be that country. we have a different model here and have since the beginning. we don't want to stay interfering with these private choices. this is my question. 20 it dealt with the idea that newspapers have become so concentrated and so big that maybe we should have a different rule.

they talked about those changes. the abuses of bias and manipulative reporting are said to be about mexican religions of modern media empires power. the monopoly means communication allows for all or no critical analysis of the media. and then he says from this premise, the only effective way to ensure fairness is for government to take affirmative action. and then he goes on and explains we are not going to do that. our first amendment stands against that. however much validity may be

found in his arguments. at each point, the implication -- implantation of a remedy calls for something essential. compelling them to publish what reason tells them they should not publish. he says we are -- will have a big exception to the idea that the first amendment distinguish the state from the private sector and private individuals. for 50 years later, how is that principle articulated in 20? >> i think it does establish a bright lamp opposition that the

state even if it has these concerns about market power and dominance and control cannot direct and overtake the function. at the same time, i think they are legitimate concerns here about the kind of power and influence social media platforms wheel. it is not like the government lacks tools to deal with it. it is not like you can't regulate it at all. there is a whole body of government regulation that would target conduct. things like antitrust walls or consumer protection. even 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 regulation can pass constitutional muster. i want to be very clear that we

are not suggesting governments are powerless to respond to some of the concerns mentioned. i think one natural place to go is disclosure. you at least make sure that users have a surety of how they're acting and with what policies are. >> on turner, dickie was content neutral there. >> they concluded that the governmental interest as you put it was unrelated. my friend suggested that 4.5 was precise at the same interest. this is to change the speech on the platform. they do not like the way the problems were moderating content. whether that is candace speech,

speeches by journalist entities or otherwise. we think the court of buy intermediate scrutiny here. >> tnk you. >> i asked this practical question that is just kicking off. i just want to be sure i am understanding your answer about how it is different. he reported that justice kagan. it will be right appear on 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 know about

these other applications? that might be within the statutes legitimate suite. we are going to send it back to the court to sort out. >> i think it would be one possible approach appeared want to express strong agreements. it underlies that question. all with respect to the types of application we have been discussing. if you think those issues are properly used in this case, i don't think the court has received a breathing frankly but it seems like it would be a reasonable thing to do. the factual development and 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 issue about how tutoring might apply. i have to confess i have not gone back. i think there are circumstances where it is the platform's own conduct. that is something that might not be immunized. this is all part from the first amendment issue. whether or not you think this is

right -- 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 proper. the court can very clearly outline that. >> thank you. >> i hear you struggling

valiantly to set aside other kinds of applications. i guess i can't figure out why those other applications aren't in this case. i think florida defended the law as the net choice challenged it. it brought a special challenge. i 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 burden is to show that there are either no valid applications of law or that the law has a legitimate suite. if we could identify other applications. if we see roads in which labor 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 are engaged. >> the question is if it is the choice is burden to have presented 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 be on both 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 corner and find some possible valid application. it could go down a complicated road. >> the confusion is that the look on his face is really broad. we have said that. many people have noticed it could apply to all sorts of things. i appreciate all that but we have a special challenge. and to the extent entire logos. maybe these other lawful applications would go as well.

>> you are looking at this properly. i don't know if the court is definitively resolving it. i want to agree, i have some sympathy here. i have been working with my team to say it doesn't -- does the seam cover direct messaging? we think there is a lot of ambiguity -- not to resolve the central issue. it would require these by forms that are created the compilations of third-party speech. >> thank you, counsel. rebuttal? >> first on the procedural posture, the fact that there is no record in this case is the choice fall.

we wanted to slow it down. we even offered to voluntarily stay below while we did that. they say we want to go fast and oblige them. there were no meaningful opportunities to take the discovery. we 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. and contrary to what my friend said, it does apply. right before that is the definition of the key platform. if we were sent a journalistic enterprise i don't think that of

, that broadcast you did last week, that is covered. it is not just gmail, it is what's at. the consequences of my friends arguments are really quiet suite. that even a traditional commentary has the first right against the sensor. i guess that means verizon could turn it over tomorrow. that would have sweeping consequences. verizon has no message. that principle is distinct from what my friend from the united states is saying. she is talking about big range material on the website. that did not speak to whether they had a competition a