Alito Wants To Weigh YouTube, And The Rest Of SCOTUS Wants To Make An Easy Case Hard

As Mike already noted, the weirdest moment of the nearly four-hour, double-case hearing at the Supreme Court on Monday in the NetChoice and CCIA legal challenges of Florida's and Texas's social media laws came maybe two thirds into the oral argument, when Justice Alito openly wondered, If YouTube were a newspaper, how much would it weigh?" I was in the courtroom when he said it, but I have no more insight into what analytical issue he was wrestling with that could have prompted this inquiry to counsel than anyone who listened to the hearing remotely or read it in the transcript.

It should therefore not come as much of a shock to suggest that Justice Alito seemed to have had the least amount of sympathy for, or understanding of, NetChoice's and CCIA's arguments. It might however be a surprise that Justice Kavanaugh had the most. Perhaps not, as Mike observed, given that he was the author of the Halleck decision, where he displayed some significant interest in protective First Amendment doctrine. On the other hand, the politics of this case do not follow a traditional red-blue breakdown. If they did, one might expect a conservative justice to side with conservative government officials. But, like we noted with the 303 Creative case, the principle of First Amendment protection transcends politics. A lot of people read that case as conservative justices favoring conservative views because they preferred those views. But the reality is that the constitutional rule the Court announced there benefits everyone, no matter what views they have to express, because it tells the government that it doesn't get to trump them when it doesn't like them. Which is basically what these cases are about: governments trying to trump expression when it doesn't like the views it expressed.

And Justice Kavanaugh in particular appeared most able to see that this was the issue at the heart of the case. The arguments that the states kept making, that they passed these laws in response to censorship" fell flat before him, because over and over he kept reminding that censorship" requires state action. Which destroyed any justification Florida and Texas claimed to defend their laws. Ultimately Florida and Texas were complaining about the expressive decisions of a private actor, and using their laws to take away the ability of this private actor to continue to make them. In other words, it was their state action that was now determining what expression could or could not appear online, which is the very essence of what is complained about when one complains of censorship, and what the First Amendment most definitely forbids.

The big question raised by these cases is whether the Court would recognize that it does offend a First Amendment right of the platforms when governments try to take away their ability to make those choices. Would the Court see that, just as it recognized that newspapers had the right to choose what op-eds to run, which no law could interfere with, so, too, do the platforms have the freedom to choose what user expression to either facilitate or moderate away?

Or at least it should have been the big question. Because it did seem that there were at least five justices who understood the implications of platforms not having that freedom, and who found the states' arguments referencing the Court's earlier rulings in Pruneyard and Turner - where the Court had limited an intermediary's expressive discretion - to be inapplicable analogies. But it was not quite clear that NetChoice and CCIA will be able to walk away with the win that they should, and these laws remaining enjoined, because there seemed to be at least two issues bogging down the Court's overall thinking.

One was that the procedural posture of the case seemed to displease them. The justices did not seem to like that it was a facial challenge," as opposed to an as applied challenge." With the latter, the plaintiffs would complain how a law hurt them, whereas with the former the argument is that the law is a fundamentally unconstitutional effort that needs to be stopped before it can hurt anyone. The problem with this sort of challenge though is that a law might be unconstitutional in some ways it would be applied, but fine in other contexts, and the facial challenge paints the whole thing with the same broad unconstitutional" brush, which might not be a fair assessment of the whole law.

Of course, let's remember what was going on when these particular laws were passed. Governors DeSantis of Florida and Abbott of Texas were very unhappy that some speakers and speech had been removed from certain large social media sites. These laws both seemed to be very transparent efforts to punish those sites for having made those expressive moderation choices and make sure they could not make them again. In fact, remember that Florida's law originally had the theme park" exemption, where, back when DeSantis still liked Disney, he made sure that the law wouldn't reach any site owned by Disney and impinge on its moderation choices. And then, when he got mad at Disney, he got the law changed to make sure they were subject to it too.

So when presented with these rather baldfaced attempts to interfere with platforms' First Amendment rights to moderate their sites as they saw fit, NetChoice and CCIA did not hesitate to sue on behalf of the platforms that would be affected. And as part of the lawsuit it asked for the laws to be enjoined, because one should not have to wait to be injured by an unconstitutional law before being able to show the courts that it would cause an unconstitutional injury. Instead that injury should be headed off at the pass, which is what preliminary injunctions are for. Which doesn't mean that if there is a redeemable part of the law it can't later be upheld, but it does mean that when an injury is shown to be likely we keep the status quo in place, with no injury risked, while we fully explore the question of just how unconstitutional the law is.

Furthermore, as NetChoice and CCIA pointed out, it wasn't like the states defended their laws by saying they had also constitutional applications. Both Texas and Florida overtly wanted to do what NetChoice and CCIA feared: usurp platforms' editorial discretion. Either the First Amendment lets Florida and Texas do this, or it doesn't, and that's why both parties centered that question in their litigation strategy, which was very strange for the Court to now second guess. NetChoice further noted that when it came to a law that violated the First Amendment, it would also be a problem if facial challenges to such laws could be stymied by lawmakers simply slipping in a provision that might be sometimes legitimate because it would mean that lawmakers could get away with causing an unconstitutional injury if that pretextual provision made the law now untouchable by the courts until that injury had accrued.

And then there was a second major point of confusion that arose for the justices on Monday, and Justice Gorsuch in particular, who wondered what the effect would be on Section 230 if they ruled in NetChoice and CCIA's favor. The answer: there is no effect, but the problem is that it betrays a pretty significant misunderstanding of Section 230 to think there would be.

What seems to confuse is that when it comes to Section 230 platforms basically argue, It is not our speech at issue," and in the context of these cases, the platforms are basically arguing that it is their speech at issue. And how could both be true? But the reason both can be true is because when it comes to online speech there is more than one expressive act at issue. One of the major ways Section 230 operates is to make clear that the expressive message of the user is the user's alone, and if there's an issue with that message responsibility for it lies exclusively with the user who expressed it. Which is why platforms argue, when raising a Section 230 defense, that it is not their speech. Whereas what is at issue in the litigation here is the separate message platforms convey when they allow users to use their sites to spread their messages, or otherwise deny certain speakers or speech. Allowing (or denying) speech amounts to platforms saying the separate message - and their own message - of what speech they welcome. But that speech they welcome is still not their speech, but that of the user.

I wish this point had been emphasized more during the argument, but NetChoice/CCIA did drive home the separate point that Section 230 is obviously not in conflict with platforms having First Amendment rights preserving editorial discretion because part of its protection is designed to protect platforms when they exercise that discretion. The other major way Section 230 operates is to insulate platforms from liability arising from the acts they take to disallow speech. Congress wanted platforms to take steps to remove objectionable content, NetChoice/CCIA reminded the Court, and wrote the statute to make sure they could. So at minimum, even if platforms did not have the Constitutional right to moderate content, Section 230 would still give them the statutory right, and preempt states like Florida and Texas from messing with that protection, as these laws do. But in reality platforms have both rights, the First Amendment right to do this moderation and the statutory right to make sure that no one can try to take issue with how they've done so. These rights complement, not conflict, and hopefully the Court will not be distracted by misunderstandings that might suggest otherwise.