Four Key Takeaways from the Moody v. NetChoice and NetChoice v. Paxton Oral Arguments

The Supreme Court heard arguments for NetChoice v. Paxton and Moody v. NetChoice on Monday, February 26, the latest round in months of debate around whether two social media regulation laws in Florida and Texas violate the First Amendment. These two Supreme Court cases, along with others currently being considered by the Court and various courts of appeals, will shape internet governance for years to come.

NetChoice, representing a coalition of social media companies and internet platforms, argued that two state social media regulations violate their free speech rights. The Florida bill (SB 7072) imposes a variety of obligations on social media companies that require transparency in their content moderation activities and prohibit them from engaging in certain types of content moderation. While containing some differences, the Texas bill (HB 20) is substantially similar in that it regulates how and when social media companies can moderate their content and requires them to give transparent explanations when they do so.

NetChoice challenged these laws separately in the two cases: NetChoice v. Moody (Florida) and NetChoice v. Paxton (Texas). In both cases, NetChoice moved for a preliminary injunction to halt enforcement of the statutes until the conclusion of litigation. Though the district courts granted the injunctions in both cases, the Fifth Circuit vacated the Texas injunction, while the Eleventh Circuit affirmed in part, and vacated in part, the Florida injunction.

After the Supreme Court granted certiorari, over eighty organizations, scholars, and individuals submitted amicus briefs. The sheer variety of arguments showcased the difficulty in applying fact-bound First Amendment precedent to two statutes impacting a complicated industry and a variety of practices. To that end, EPIC submitted an amicus brief urging the Court to take a nuanced, careful tack in this case, looking at the actual practices being regulated and determining whether those practices are expressive or not. This contrasts with the parties’ and many amici’s all-or-nothing approaches.

Monday’s arguments stretched for more than four hours, revealing fascinating insights into how the Court is thinking about social media and the First Amendment. Though NetChoice and its attorney, Paul Clement, seemed to think these arguments were going to be a cakewalk, they were anything but.

Here are some of EPIC’s takeaways from the oral arguments.

Takeaway 1: The justices seemed to reject a categorical approach to determining social media companies’ First Amendment protections.  

Throughout the argument, the justices pushed back on the parties’ all-or-nothing approaches to the legal questions involved: that all social media platforms are like either newspapers, shopping malls, parades, or telegraphs, or that all of their activities are or are not expressive conduct under the First Amendment. While the justices repeatedly sought specificity from the parties, they received little. Their rejection of the parties’ generalized arguments sent a message that the Court is unlikely to take a categorical approach to determining social media companies’ First Amendment protections.

The justices’ quest for specificity permeated both arguments. Justice Alito asked for lists of platforms that were or were not impacted by the laws, while Justice Roberts requested clear examples of social media platforms’ activities that were and were not expressive. In our amicus brief, EPIC urged the Court to do just this: to ask questions and understand exactly which activities are regulated by the statutes instead of trying to formulate a broad rule that sweeps in potentially non-expressive activities.

The justices questioned the parties’ analogies comparing social media companies to other industries featured in prior First Amendment cases. First Amendment rulings can turn on the characteristics of a specific industry or practice, so both parties attempted to portray social media companies as falling clearly within existing precedent. The States, for example, tried to paint social media platforms as being similar to the shopping mall featured in Pruneyard Shopping Center v. Robins, a case in which the Court ruled that the mall did not have a speech interest in keeping out certain types of third-party speech. NetChoice, on the other hand, argued that the platforms were like the newspaper company in Miami Herald Publishing Co. v. Tornillo, which got full First Amendment protections for deciding whether or not to allow certain stories to appear in its pages. The parties and amici made other analogies to parades, utilities, telegraph companies, cable operators, law schools, innkeepers, and anthologies, among others.

Overall, no analogy appeared to win the day. Justice Sotomayor called it “a little crazy” to analogize these platforms to physical spaces, and Justice Alito noted that the platforms are “worlds away” from newspapers and telegraph companies. Several of the justices expressed concern that any analogy would work given the breadth of each social media companies’ activities, the variety within the industry, the sheer size of the platforms, and the significant power that these companies can hold.

For the same reasons, the justices appeared to reject the States’–-and some amici’s–-arguments that social media platforms are common carriers. The States argued that the platforms are akin to common carriers like railroads and utilities, which are subject to greater government regulation, and that what the States characterize as antidiscrimination provisions were legitimate laws that did not trigger First Amendment attention. Justice Barrett expressed ambivalence about this argument. She noted she was open to the idea that services like Gmail are like common carriers, but she also did not find the analogy convincing because “[e]ven each of these platforms has different functionalities within it.”

Although the justices aimed for specificity, there were certain areas where they, too, made broad generalizations. One area was using the umbrella term “content curation” to conflate many different activities—a conception pushed by the Solicitor General. This umbrella term ignores the important differences between removing or downranking a post based on its viewpoint versus delivering content using habit-forming design practices that will maximize users’ time spent on the platform. Considering these different functions as the same expressive activities indicates that some justices may not be clued in to their constitutional differences.

That said, the justices did appear to be aware that the terms that they were using to define the platforms’ activities were quite broad. Justice Alito asked NetChoice to define the term “content moderation”–-which it defined circularly as the exercise of editorial discretion. Justice Thomas looked for more clarity in whether “shadowbanning” and “deprioritization” were types of content moderation. The justices also seemed to reject NetChoice’s categorization of all of these functions as exercises of “editorial discretion.” During the Paxton argument, for example, Justice Gorsuch pushed back on the argument that addictive design constituted editorial discretion. And during the Moody argument, the justices were disturbed by the argument that Google had a First Amendment right to secretly delete Gmail messages because it disagreed with their content.

The Court’s hesitation to accept the parties’ generalizations about tech platforms and their activities show that the Court may reject NetChoice’s invitation to make a sweeping ruling insulating the entire tech industry from regulation. Regardless of the outcome of this case, for future litigation, NetChoice and its members may need to work harder to show the actual impact of these laws, rather than relying on sweeping declarations of hypothetical harms.

Takeaway 2: The justices were frustrated with NetChoice’s decision to litigate these cases as pre-enforcement facial challenges with bare-bones records.

The justices traced their frustration with the lack specificity from the parties to the peculiar postures of the cases. In doing so, the Court signaled that it may strike a blow to NetChoice’s general litigation strategy of bringing pre-enforcement facial challenges without developing robust records on the law’s applicability and effect.

There are two ways to challenge a law under the First Amendment. A facial challenge is aimed at striking down a law in its entirety. An as-applied challenge seeks to block enforcement of a law—or parts of a law—against specific persons in specific circumstances. First Amendment challenges can be brought before or after the law has been enforced. The burden in a facial challenge is supposed to be higher than in an as-applied challenged. Plaintiffs have to show not just that the law is unconstitutional as applied to them but that the law has no plainly legitimate sweep—that is, the law doesn’t have a significant number of constitutional applications. But far from being a disadvantage, NetChoice has used the lack of evidence about the interpretation and impact of regulations as an opportunity to extract favorable First Amendment principles from the ether.

NetChoice’s general litigation strategy has been to bring facial challenges before new regulations can be enforced. That means no company has tried to comply, no company has been sued, and no court has interpreted the law. NetChoice then quickly moves for a preliminary injunction. At this stage there has been no discovery or trial, so the record is typically a set of declarations opining about the hypothetical impacts of the law. While some laws NetChoice has challenged—like the laws requiring social media companies verify the ages of their users—would have a predictable and necessary impact on speech interests, other laws—like California’s Age-Appropriate Design Code—would not. Yet, NetChoice has been able to convince lower court after lower court to grant them sweeping injunctions based on flimsy records and the most cursory statutory construction.

Unlike the judges in the lower courts, the justices were not keen on deciding such a consequential question as the constitutionality of a statute without knowing the specifics. The very first question from the justices was about why these cases were being heard as facial challenges instead of as applied. Justice Thomas’ clarification of his concern about facial challenges later in the argument captures well the problem with many of NetChoice’s cases: “With these facial challenges, I always have a problem that we don’t – we’re not talking about anything specific. In an as-applied challenge, at least we know what’s in front of us and what your interpretation or at least the state’s interpretation of its law is in that case. Now we’re just speculating as to what the law means.”

A clear majority of the justices bemoaned the fact that the parties could not answer who the laws apply to, what activities they regulate, and what burdens they impose on NetChoice’s members. Several of the justices noted that eliding over these details made it difficult to decide what standards should apply and whether the laws have a legitimate sweep. Even NetChoice’s potential allies on the Court, like Justice Barrett, thought that the laws might have legitimate applications that were not properly addressed by NetChoice. Justice Sotomayor, who was highly critical of the laws, pushed back against NetChoice’s bald assertion that the individual disclosure provisions in the Florida law would increase the burden on big tech companies “one-hundred times.” None of the justices seemed convinced by Clement’s argument that the gaps in statutory interpretation and the record could be remedied by affirming the injunctions and letting the lower courts sort out the details.

Some of the justices seemed to think that NetChoice should just plain lose because it was their burden to build a record—and they clearly failed. Justice Jackson, ever attentive to who bears the burden in a case, repeatedly articulated NetChoice’s burden here and took Clement to task. When Clement tried to say the thinness of the record was Florida’s fault, Justice Alito pushed back that it was his clients’ own litigation strategy—to bring a facial challenge instead of an as-applied challenge—that resulted in the mess.

It seems likely that the Court will vacate and remand with instructions on how proceedings in the lower courts should continue. Best case scenario is that the Court limit its analysis to what parts of the record require more development. Solicitor General Prelogar sanctioned this approach but had one request for the justices: that they provide the lower courts guidance about the scope of social media activities that are protected under the First Amendment. The SG’s suggestion—that all activities related to the curation of content are inherently expressive—is more limited than NetChoice’s industry-wide request for immunity, but is also just the kind of overbroad, abstract principle that NetChoice was hoping to extract from this litigation.

EPIC believes that it would be a mistake for the Court to make such a pronouncement, and at least some of the justices seem hesitant to do so given the lack of information about what social media functions these laws impact and the extent to which they are expressive. But some of the justices—like Justices Barrett, Kagan, and Sotomayor—seemed amenable to the SG’s suggestion. With Justice Kavanaugh likely to support NetChoice, it may come down to the Chief Justice whether, despite a rebuke of their general strategy, NetChoice winds up getting a significant part of what they wanted anyway.

Takeaway 3: The justices focused on inconsistencies in how NetChoice’s members explained their activities in First Amendment cases versus Section 230 cases.

When social media companies arrange and deliver user-generated content, are they using neutral tools to disseminate content about which they have no knowledge, or are they making value judgments about the content to express a message? Either, according to the tech companies, depending on which one helps them escape liability.

During argument, the justices noted how tech companies describe the same activities differently depending on if the case involves Section 230 or the First Amendment. Justice Alito paraphrased how tech companies described delivering third-party content: “It’s your message when you want to escape state regulation, but it’s not your message when you want to escape liability under state tort law.”

Section 230 is a law that prevents internet companies from being held liable for harms caused by other people’s speech on their website, not from harms caused by the companies’ own actions. A person can’t sue Facebook just because a user defamed the person on Facebook. But if Facebook wrote the defamatory post itself, it could still be held liable. The question in many cases about platform harms is whether Section 230 permits lawsuits when a social media company’s methods of delivering or arranging content creates a harm that is distinct from the harm caused by the underlying content.

Tech companies have aggressively argued that Section 230 should prohibit these design-based lawsuits. They argue that all they are doing is using “neutral tools” to disseminate third-party speech.

But in this case and other First Amendment challenges to statutes, the same companies argue the opposite: their content curation and ordering is not neutral dissemination but instead viewpoint-based, protected expression that can’t be regulated consistent with the First Amendment. If both arguments prevail, it would be a windfall for social media companies: immunity from civil suits brought by people who have been harmed, and immunity from democratically elected lawmakers’ regulations meant to prevent those harms in the first place.

Many of the justices noted these inconsistencies. Justices Gorsuch and Barrett asked why Section 230 should bar suits against companies for how they amplify and arrange user content when the companies admit that these activities are the companies’ own speech. The Solicitor General admitted that companies probably should not enjoy Section 230 protections in these suits, but NetChoice clung to its broad immunity claims. Justice Gorsuch pushed NetChoice, summing their argument as, “So it’s speech for the purposes of the First Amendment, your speech, your editorial control, but when we get to Section 230, your submission is that that isn’t your speech?”

The questioning in these arguments show that the Supreme Court may be willing to rein in tech companies’ overexpansive Section 230 interpretations in a case that tees up the question better than Gonzalez v. Google last term.

Takeaway 4: The justices barely asked about the individualized explanation provisions.

One of the two questions presented to the justices in this case was whether the statutes’ individualized explanation provisions triggered the First Amendment and, if so, which standard of scrutiny the Court should apply in evaluating the laws. Levels of scrutiny are important because they can tip the scales in favor of a law being found constitutional or not.

The parties and many amici spilled much ink arguing over the individualized explanation provisions. A particularly interesting and nuanced debate among amici centered on whether to apply the standard set out in a case called Zauderer v. Officer of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626 (1985). This case permits the government to order companies to disclose factual, noncontroversial information to the public so long as the disclosures are not unduly burdensome. This enables consumers to make informed choices about the products and services they engage with while preventing the government from imposing overly burdensome regulations. Amici disagreed strongly over whether Zauderer was the right standard to evaluate the individual disclosure provisions in this case. Some of the justices have recently signaled their interest in adjudicating this issue, with Justices Alito, Gorsuch, and Thomas writing about it during an earlier stage of this litigation.

But the justices raised almost no questions about the topic during the arguments. Nobody mentioned Zauderer at all. Perhaps the threshold question about how to conceptualize social media companies and content moderation, combined with the complexities and difficulties raised by a pre-enforcement facial challenge, simply overrode these concerns.

The only discussions about the individualized-explanation provisions involved justices questioning NetChoice about how burdensome they would be. When Clement said that the provisions would increase the burden on his clients “one-hundred times,” Justice Sotomayor pushed back, asking how his client came up with that figure. Justice Alito noted that the European Union already requires tech companies to provide individualized explanations about content moderation, and the companies have had no issue complying with those laws. He asked, “[I]f it’s not too much of a burden for your clients to do it in Europe, how can it be too much of a burden for them to do it here?”

Quick Hits

• The arguments exposed that NetChoice may not be able to represent all of its members’ interests at the same time. NetChoice represents platforms ranging from e-commerce to messaging platforms to traditional social media in this lawsuit–-but its attempts to defend what it called “less obvious” forms of expression by its members like Etsy and Uber were weakened by its focus on “core” types of expression by traditional social media companies like YouTube and Facebook.
• The justices did not buy NetChoice’s argument that the laws were unconstitutional because they “discriminated” against speakers based on size, only targeting the larger social media companies. Kagan in particular took Clement to task for suggesting that a speaker-based distinction that doesn’t reflect a viewpoint bias is sufficient to trigger the First Amendment. NetChoice often makes this argument, which, as explained in a previous EPIC blog post, reflects a mistaken reading of an earlier Supreme Court case.
• Even if the justices decide that some social media platforms are common carriers, this may not be the “get out of jail free card” that the States seem to expect, as Justices Sotomayor and Jackson expressed skepticism that no level of First Amendment protection applies to common carriers.
• A recurring theme in the arguments was the difference between government and private “censorship.” While the involvement of the government in social media platforms’ content moderation was not at issue in this case, these exchanges may shed some light on the upcoming argument in Murthy v. Missouri.
• At one point, Justice Gorsuch asked Clement whether NetChoice’s legal theory meant that tech companies have a First Amendment right “to attract teens to addiction or suicide, depression, those kinds of things.” Clement replied that his clients would never do such a thing, but, yes, they likely have the right to. A recent lawsuit brought by more than 40 states alleges that at least one of NetChoice’s members have done exactly what NetChoice’s attorney denied they do. Many tech executives and whistleblowers have expressed dismay at how their companies have made products as addictive as possible.
• Clement insinuated that the internet today is just like the internet in 1997, which is of course absurd. Clement repeatedly referenced the Court’s description of the internet in Reno v. ACLU, a case that was decided in 1997. In 1997, the internet was mostly text and images that users had to affirmatively search for. There were no complex algorithms sorting and matching content for users. The platforms Clement represents did not exist in 1997, nor did any companies dominate the market (and users’ attention) like NetChoice’s members do now.