that principle is sustained from what my friend for the united states is shane. she's saying they arrange material on the site in various ways, but that doesn't speak at all to whether they had a constitutional right to censor. just because you have to carry content or carry a user you can still arrange it. that's the fundamental conflation the united states does. it ignores the distinction between the hosting function and organizational function. i think the court needs to keep separate in its mind and i would commend the court cited on page 24 of the brief. thank you. >> thank you. the case is submitted.

>> the supreme court also heard oral argument in another case that questions whether states can restrict content moderation on social media. the justices will have until june to will on this case. this comes out of florida. it is about 2 1/2 hours. >> we will hear argument next in case 22 555 netchoice versus paxton. >> if it may please the court, i don't want to proceed as if i wasn't here for the first argument. let me focus on what's different about paxton. one thing that is different is its definition of social media platforms excludes websites. we can put the gmail issue to one side for talking about texas. the other it excludes is websites that are primarily focused on news sports and entertainment. in the first amendment business we call that content-based discrimination. that's one of the many reasons this is spatially

unconstitutional. the other different is in some respects this statute operates were simply because it forbids my clients from engaging in viewpoint discrimination. we are used to thinking viewpoint discrimination is a bad thing and the government shouldn't do it. when governments do it it is a bad thing. when editors or speakers engage in viewpoint discrimination that is the first amendment right. it's also absolutely vital to the operation of these websites because if you have to be viewpoint neutral that means if you have materials involved in suicide prevention you also have to have materials that advocate suicide promotion or if you have materials on your site that are pro-somatic then you have that are anti-somatic. that is a formula for making these websites very unpopular to both users and advertisers. it's vital. the other that makes texas different is at least in passing the law texas was a

more explicit and relying on the common carrier analogy. as labeling websites common carriers makes the first amendment problems go away. that is fundamentally wrong. these companies don't operate actually as common carriers. they have terms of use that exclude varying degrees of content and texas can't simply convert them into public common carriers by its say-so. i welcome the courts questions. >> if these laws go into effect how would your client, what steps would they take to comply? >> one thing -- >> in particular, addressing the situation of compliance and texas and florida as opposed to nationwide. >> one thing he would contemplate at least with respect to taxes in the first instance is some way to withdraw from the market in texas and florida. texas had that mind in statute

and specifically said we essentially have to do business in texas and we can't discriminate against users based on their geographic location in texas. if we lose this, including the idea we can be forced to engage in expressive activity then i think we would fundamentally have to change the way we provide our service in order to engage, in order to provide anything like the service we want to while not engaging in viewpoint discrimination. we basically have to eliminate certain areas of speech entirely. we couldn't talk about suicide prevention anymore because we are not going to talk about suicide promotion. we couldn't have speeches because we aren't going to have anti-somatic cell we have to figure out some way to engage in even more content moderation or editorial discretion to try to get us to a level where we are more benign and somehow

don't run afoul with texas law. the record here reflects youtube would have to basically increase its disclosure and appeal process to basically a hundredfold to comply with texas law. i'm happy to talk more about the common carrier issue because i think it's a central part of their defense. there was an illusion earlier of how it treats them as common carriers. this is 47 usc 223 subsection six which we cite in our brief. it's the congressional provision in the same act of congress that says the interactive computer services should not be treated as common carriers. more broadly, the whole 230 is don't be a common carrier, don't put through all this material. we don't want that. we want you to exercise editorial discretion in order

to keep some of the worst of the worst off the site. >> all that is true. i acknowledge that. it also says that's true only if it's not your speech. that seems to be in tension with your suggestion that everything is your speech. i think justice barrett pointed out an interesting feature of that which is these algorithms range, sort, promote certain posts by users and not others. is that not your clients speech? >> i don't get ours in the way section 230 talks about the speech. for these purposes you have to distinguish between the editorial function and the underlying user speech. >> there is editorial speech going on.

i think that's right. >> they would be liable. it's editorial speech. >> i don't think so. i did reread the brief i filed in the gonzalez case and i think you can make an argument based on that statute that kind of editorial functioning is not something that causes you to lose your protection. >> your speech, your editorial control. when we get to section 230 your submission is that isn't your speech. >> yes. otherwise, section 230 ends up being self-defeating. the whole point was to promote the editorial discretion and this court wrestled with these issues. i certainly applaud the instinct you shouldn't resolve here, but i don't think just by record rising that my clients are engaged in editorial discretion when they make those decisions of what will

ultimately go to the individualized screen a user is going to see when they tap into their website or application i don't think that is the kind of speech. you're talking about the 230 contacts, you would defeat the fundamental purpose of 230 because they wanted my clients and others to exercise discretion to keep the bad material out. >> it seems like we have speech and then we have speech. >> i'm happy to argue that case right now if we want to but you can't have -- >> it's perfectly relevant here. it's important because 230 preempts things. we don't know how much of this is preempted. >> this lot is unconstitutional in all its application and certainly it has no legitimate sweet. you don't have to reach the 230 directly here and i would simply say when reading those statutory terms in 230 you would

sweep in editorial discretion because if you do you defeat the fundamental purpose of section 230. >> i want to raise with you the question i raised earlier who offered a thoughtful response. many of your clients terms of service, while reserving some editorial discretion, and i think about most of them as speaking about the things covered 230, et cetera, out of their way to promise an open forum to all members of the public. they go out of their way to say we don't endorse what other people say on this site and go out of their way to say all views shall flourish. that's not true for all of your clients, but it's true for some. many. what do we do about that? >> it's true. some clients and some more than others and i think all of those terms of service as the general said go on to certain things

out of bounds. it's a factually true thing that my client in the main as long as you stay within the lines actually do want to promote an open dialogue and fair dialogue. if you look at the center for growth and opportunity it shows you that some conservative voices really flourished on these websites. ben shapiro is killing it on facebook. that shows you we do want a broad discussion but there's some stuff that is out of line. i don't think it's simple to say that is the 230 stuff. we had a debate about what other objectionable means but i think my clients are getting a lot of pressure to be particularly careful about things damaging to youth. in that context they want to err on the side of keeping some bad material off. >> let me push the other way. does it also hold on your review

part of the editorial discretion of a platform would be that it can use algorithms designed specifically to try to attract teens to depression or suicide? that would be part of their discretion? >> i don't think -- >> i don't mean to cast dispersions. i think it's a consequence of your position isn't it? >> there would be protected first amendment activity with that website with a business model i don't think would stay in business long and it is possible as the united states pointed out that if you have a different concern and identify a different interest that may be the government might be able to do something if it doesn't in the content neutral way to address those concerns. to get back to something justice kavanaugh pointed out i think both texas and florida have been pretty aggressive about the government interest here being something that is not just a legitimate interest

but affirmatively prohibited which is the idea we are going to amplify some voices and put burdens on private parties so that some voices can be louder than others or some people can get a boost from what they are getting in the marketplace of ideas. the only place this court has ever allowed that was in turner. justice kavanaugh pointed out one of the key things was content neutral but i think the critical thing in turner is that bottleneck or chokehold on the content that went into individual houses. that's what made what was otherwise an impermissible government interest legitimate government interest in that narrow context. maybe you can say the same thing. it's the same idea that there is a scarcity rationale but there's no scarcity rationale on the internet. this court said that in 1997.

>> can i ask about an extinction between two kinds of applications of the text is law? one is the application that prevents you from taking out certain speech you want to keep out. it could be any of a number of things. as i understand it the texas law prevents you also from doing something else which is suppose you wanted to prevent anti- semites from posting anything. you wanted to say they are a class of people. we are not going to let them post cat videos. should we think about that set of applications differently? >> i don't think you should think of it radically differently. it's a different application but it's the same idea. i think this is going to be very few, but there's some speakers where they are so associated with a particular viewpoint that it informs essentially all of their speech and it affects the speech of

other people in the forum. if you have a white supremacist on your speech forum and they are posting their it'll cause other people to say what is that person doing? what is going on? it's a fundamental change. i think a website that is trying to promote a particular discussion has a first amendment right to exclude those people. in practice this is what is used to exclude sexual predators which is something the government can't do, but facebook does. there's other people with very distinct viewpoints where we know the viewpoint is problematic even if the particular post is not. >> i wanted to follow-up. it seems to me the question gets to the distinction between turning people away and the speech that you have.

if you think about it as silencing someone you let on your platform then it seems more like speech or content moderation to the extreme for the example but i assume the implication of your answer is that you could tell the anti- semite we are not open to business for you. >> you could tell that person that our speech form is not open to you and i think that's what makes it different that texas is focused on the speech oriented platform. if you're in the business of speech and you have somebody this is not other prohibited status. this is viewpoint. you are a notorious anti-semite and we don't want you to participate in this conversation. sure. i'm going to have a catholic website. i could keep off somebody who is a protestant. i want to preserve the nature of the discussion on my forum. it's a private forum and the government cannot tell me as a private party at the protestant

in. i don't think so. >> can i ask you about section 2? you say section 2's individualized explanation requirements violate the first amendment because they impose a massive burden. it seems to me that the european union has imposed exactly pretty much the same individualized explanation or requirement on anybody who operates their vortexes has imposed. i'm not saying whatever the european union says is okay is constitutional here. just on the practical question of whether it's too much of a burden how can it be too much of a burden for them to do it here? >> they are different. in a sense the european union provision has sort of a built in reasonably practical provision right into what you

have to do. this is a requirement to respond to every takedown and has over 1 billion takedowns and a quarter for youtube. there's also a appeal process which i don't think is coextensive with the process in europe. just as a practical matter i think this is more burdensome, but as you said, the first amendment does not apply in europe and i think that having this kind of requirement of what is really an editorial discretion decision is hugely problematic. if you took this and said the new york times you have to tell us why you rejected my wedding announcement we only take 10% of wedding announcements you have to tell me even if you itemize that and said well, if you weren't rich enough, not connected enough in social circles and we didn't like the way you look. >> some of your clients -- if

you want to say this is unduly burdensome then you have some obligation in the district court . is it enough to say this is a huge burden so knock this out? don't you have to provide something to show what resources would be required? why would that be too much? >> we did. there's a record in the case. the witness for youtube in their declaration specifically said this would be 100 times more burdensome than their current process. there is a record on this. it is burdensome. >> the 230 argument is intriguing to me. the distinctions you are drawing somehow, to some degree escape me. this is your position that you are exercising editorial discretion as to everything but

say youtube or every video that is placed on youtube. you have exercised editorial discretion that you want that on youtube. >> i would say we have exercised some editorial discretion to not sort of eliminate that from the site entirely and, as to an individual user, we have used what are typically in many cases neutral algorithms but some are not neutral. even in the briefs made it quite clear, although at a certain point some algorithms were neutral as between rice pilaf and terrorism there were other efforts to get terrorist stuff off of those sites. >> if you were a newspaper and you published the content that appears in every single one on t you allowed to be to be included you would be liable potentially

for the content of that material. i don't understand the rationale for 230 if it wasn't that. you can't be held responsible for that because this is really not your message. either it's your message or it's not your message. i don't understand how it can be both. 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. >> i don't really think we're being inconsistent and what i would -- i would try to draw theagey to a good, old-fashioned anthology. if i put together an anthology of 20 short stories, everybody understands that the underlying short stories are still the product of the individual author but as the anthologist, as the editor of this compilation who decided which 20 got in, which ones didn't, i'm responsible for those editorial discussions. those decisions.

those are both protected it's for amendment decisions. you can distinguish between the underlying material and the editorial decisions. in common law the publisher was responsible for both. and so they were still liable for what the republishing the author's work. that's what congress wanted to get rid of in 230. they wanted to essentially give our clients an incentive to weed out of the anthologies the stuff that was harmful for children and problematic. that's why i don't think it works to say oh, well, then that's your speech so you're you're liable under 230. it's that editorial control, weeding out the bad stuff. that was whole point of 230 to empower that. >> i don't know how you could be liable for -- well, i take that back. for fiction. but certainly if it was -- i mean if you back in the day when some written material was considered to be obscene, you put together an anthology that included obscene material you could be sued. today if you put together an

anthology of essays, nonfiction writing, and there's defamation in there, then the publisher could be pseudo. exercising editorial discretion doesn't shield you from liability. >> not in common law. that's why congress did with 230. congress looked at common law and said this is problematic. the only way to avoid liability with common law is if you act a conduit and let everything in. if you keep out even a little bit of important then you -- >> i don't want to belabor the point. let me say to the sides in prior cases. you say this is just like a newspaper basically. it's like the "miami herald" and the states say no this is like western union, it's like a telegraph company.

and i think -- i look at this and say it's really not like either of those. it's worlds away from -- from beth of those. it's nothing like a newspaper. a newspaper has space limitations. no matter how powerful it is it doesn't necessarily have the same power as -- as some of your clients. but put that aside. newspapers overtly send messages. they typically have an editorial. they may have an editorial printed 365 days a year or more than one. that's not the situation with even the most prominent of your clients. i don't know how we can decide this case by say, by jumping to one side or the other of this case law. >> justice, let me offer two thoughts. this isn't the first time you're wrestling with the internet. you wrestled with it in reno and

last term in 303 creative. this is more like the newspaper or parade organizer than a common carrier. as to the cases, whether you think this is different from a newspaper, i mean the arguments that you're pointing to to say it's different are the argues that those cases wrestled with and said didn't matter. i know you know this, but there was all this language about it being a monopolist, and that was in the context of a local political election, if you couldn't get into the "miami herald" where were you going to go? the court said it didn't matter. then in hur lee there's a lot of language in the court's opinion that says, you know, this is not like much of a message. they let some people show up even if they get there like the day of. and the only thing they're doing is excluding this group. the exclusion was the message that they were sending. it's the message the state was trying to prohibit. that's kind of the same thing here.

>> let's say youtube were a newspaper, how much would it weigh? [laughter] >> i mean it would -- it would weigh an enormous amount which is why in order to make it useful there's more editorial diskrergs going on in these cases than any other case that you've had before you. because if -- people tend to focus on the users that get knocked off entirely and end up on the cutting room floor. but both these statutes also regulate the way that these social websites get you down to something that's actually usable to an individual user. and in fact if you tried to treat these entities like a true common carrier, so first in, first out, order of, you'd open unwf these websites and it would be gobbledy-gook, half of it in a language you didn't understand. and you'd get all this stuff you didn't want. >> i'd like to go back to the individualized explanation

requirement. please remind me, what did the district court do here? did it grant you an injunction here? that was the circuit court who did that? >> yeah. >> so it was the district considerate who looked at the amount of material you submitted and i know your declaration, youtube said it would be a burden, 100 times more than it does now. i don't know what the quantify case of that -- whether that was quantity if id or not. was it? was 100% more, 100% more what? >> 100% more of its current effort. >> we still don't know what the cost of that is. there's a lot of unknowns. but this was a challenge with respect to. that and texas seems to say you don't need to do much. just need to have the computer spit out -- one through 10 reasons. if you have a few individualized

ones you could just explain those individualized. what do we do with that dispute? because it is a facial challenge. >> it is a facial challenge. it's a preliminary injunction. we have been over some of that. here there was -- there wasn't just declarations. there were depositions taken. there was a record that was put together on all of this. and texas was taking a slightly different view of what the burdens of the -- of text two were there. so i think on that, you look at the railroad before the district court you should affirm the district court's preliminary injunction. i also think even what they say on page 44 of their red brief is that, you know, you can do this in a relatively less burdensome way as long as your editorial policies are sufficiently specific and particularized. and what they're basically saying is, you could change your editorial policies a little bit to make it easier to comply with this disclosure obligation. that seems --

>> that begs the question, right? because they're affecting -- ok. >> justice kagan? >> i just have a quick question. so part of the dynamic that i think is going on in these cases is the fact that this regulation is enacted by the democratically elected representatives of a state. and i suppose if the state's regulation of these platforms gets too burdensome then presumably the platforms can say forget it. we're not going to operate in your state. and then the citizens of the state would have the chance to determine if that's what they really wanted. that's sort of how i'm looking at this at a meta level. what caught my attention was your response to the chief justice when you suggested that your client couldn't withdraw from the state of texas, because you read the provisions related

to censorship and geography as ensuring that you don't do so. i had not read that provision in that way. can you say more about why say more about why that was your interpretation? >> sure. this is not do not discriminate against texans. the fact that it is preventing us from discriminating against someone in texas is basically telling us that we cannot geo-fence our service and try to essentially explain -- sometimes you get your cable service with the provider and cannot get your football game. they say if you are mad about it, call the number on cam plate -- and complain. we cannot do that in response to this law. the leaders in texas were able to tell your constituents if you , like your website, you can keep it, we are not going to threaten. they cannot pull out based on regulation. >> so even if we could read it a

different way, you are saying it is necessary, i guess this dovetails with my concern about us not having state interpretations or an application to really understand. i can read this differently. it seems like it is fitting into the set of things you're not allowed to do. you cannot censor people based on the viewpoint of the user, you cannot censor them on the basis of the viewpoint being expressed, and you cannot censor them based on their location in your state or another part of the state. i guess i do not necessarily see that in the same way. you cannot just automatically do that, i guess. >> it seems to me quite clear that it is designed as the hotel california provision. a poison pill. you cannot leave texas, even if you want to try to do that as a way of showing this is a way of

regulating activities. so, i do think that is the right reading. the fact that it is geographical location in texas is kind of a clue to that. it is not something where if you are a texas fan you are , protected matter what in america. it is that you cannot do the geo-sensing that you might do to comply with an idiosyncratic state law. just for the sake of completeness, not part of the preliminary induction, there are challenges to these provisions and it's one state trying to regulate everybody so that is part of the case that will be here but it is not here. all this is is a preliminary injunction that runs to my clients. this statute has a small universe of people but if there is someone else out there who is not one of my clients and not covered by this injunction the , statute could take effect on those people in the same is true in florida. >> thank you, counsel.

>> mr. chief justice, if it may please the court, i want to pick up with the question justice alito asked to my friend about the idea that the social media platforms don't perfectly fit into either analogy or paradigm. i want to acknowledge the force of that intuition. they operate as a massive scale that goes beyond any particular parade or beyond any particular newspaper. i think the right thing to do with that intuition is to recognize it's not like you can exempt them from the first amendment. they are obviously creating something that is inherently expressive and taking this quantity of speech on their website and curating it and making selectivity decisions and compiling it into a product users will consume. the first amendment applies but i think those kind of concerns about how the social media platforms and how they look somewhat different from the other kinds of expressive

products this court has reviewed in prior cases can come into the question of whether the first amendment is satisfied with respect to any particular regulation. we think it's not satisfied here herewe think it's not satisfied here because of the way texas has designed his law. it's not necessary here to figure out how the first amendment applies to new technology in general and every possible website in the internet in particular. this law is a clear defect. texas has tried to countermand the protected speech positions of the platform and the only justification is offered to the courts is that it wanted to amplify the voice of users on that platform by suppressing the platform own protected speech. that is a defect that's clear in the first amendment and the court can say that and resolve this case. i welcome your questions. >> when i asked you about the difference in treatment of some private parties as opposed to the government engaged in similar conduct.

your answer was of course that it would be different. the government be bound to comply with the first amendment. there was some discussion in a number of the amicus briefs about instances in which the government and the private party say petitioners here and the government coordinating efforts. how would you respond to that? >> i think the position where -- we are offering here and that the position the court will consider next month and the mercy case are entirely consistent. we acknowledge that if the government actually coerces the platforms and takes over there editorial decision-making, the platform could be deemed a state actor and would be subject to first amendment scrutiny. we vigorously disputes that is

actually happening in the federal government has engaged in a kind of coercive conduct and we dispute the legal standards that were applied in that case. there is no inherent tension here. the federal government can act and criticize the social media platform content moderation decisions using the bully pulpit to express views and at the state disagreed with how they were exercising their content moderation, they could have done the same by criticizing them are urging them or influence them to adopt a separate standard. the state said they're going to pass a law that takes over their content moderation. and dictates it has to be done in a different way. >> the texas law even more than florida can be understood as an expansion of public accommodations laws. the united states is often in a position of defending a public accommodations laws and insisting that they be vigorously enforced.

how do you see what texas is trying to do as consistent with the broader stance about public accommodations laws? >> i want to stake out potentially some separate ground with respect to public accommodations laws on a particular status. we think the laws are valid on their face and they serve compelling governmental interests. to the extent you are looking at how ordinary public accommodation law operates, the refusal to deal and serve, we think that's a regulation of conduct. ordinarily, there would be no first amendment problem with the application of that law. i acknowledge that he gets more complicated when those laws are applied to a business that is providing an expressive product in cases like hurley, certain applications, sometimes the public accommodations law has to give way to first amendment interest.

the court has never suggested that the refusal to deal are served based on status and with research respect to an association would fail under first amendment scrutiny. instead, you look at 303 creative and there the concern was about changing the message or a case like hurley. gay and lesbian individuals could march, but you couldn't change the message by hauling a particular sign. we recognize there will be applications where you have to conduct that analysis but if the -- but the question is can you , bar people from creating an account? they want to lurk on x and read other people's post, that law would be valid. i want to briefly address the question about cba presumption -- preemption under section 230. i want to say there are unresolved issues here. i would warn the court away from resolving how much conduct 230

protects and how that interacts with the texas law here. the only point i would make is that they were questions about what it means to act in good faith and questions about what it means for the platform to take down content that's otherwise objectionable. however those disputes might shake out in a particular case, surely texas is not saying its entire law is preempted. and fully protected. what the court could do, not knowing the scope of how the preemption issue might resolve is whatever exists in that category of speech that texas is prohibiting, the editorial provisions versus what 230 would offer on the other hand whether , that is a big category or little category all of the , things in that category constitute protect decisions by the platform that haven't been adequately justified. and i think that is all you need to say about the preemption issue in this case. >> the legislative body enact a law requiring viewpoint neutrality in some area and it

does so because it is concerned that people who express a particular viewpoint are suffering discrimination. is that unconstitutional that the grounds that the intent of the legislative body was to benefit a particular group? >> i don't think that kind of law would immediately be unconstitutional. if it's structured like a generally applicable public accommodations law, there might be significant governmental interest in being able to protect against that kind of discrimination. >> unless there are any further questions? >> can i do one more? >> sure. >> governments spend a lot of time defending net neutrality so maybe i should have asked you this with respect to the florida law. just given the breadth of that law and why are internet service providers in your view so different and what if they wanted to make certain content distinctions? >> internet service providers

are fundamentally different because they are engaged in transmitting data in order to make websites accessible and that is not inherently expressive. they are providing the infrastructure, cable and fiber up six and -- fiber optics and service to make sure you can log in your home computer and access the internet at large. but along the way they are not , compiling that speech in an expressive compilation of their own. we would put them in the same category as telephone and telegraph companies or ups where you could say they are literally facilitating the transmission of speech, but they are not creating an expressive product that could implicate the first amendment principles at stake. you might ask if they wanted to start discriminating with respect to the services for particular kind types of websites. maybe an internet service provider decides to slow down service to a streaming site because it wants direct internet traffic to another website or streaming service. we think net neutrality can come in there and say you are not

allowed to discriminate based on content. that's because there would be no expressive speech or compilation you could attribute to the internet service provider itself. people don't sign up with comcast or verizon to give them curated access to the internet. they are engaging in service with the company's because they need someone physically to transmit the data so they can get access to the whole internet. >> can i ask one? i don't have to buy anything you just said to rule for your position. [laughter] anything you just said on net neutrality, right? [laughter] >> you don't have to agree with me but i'd like to persuade you someday. >> i just want to make sure that's walled off. >> we think the platforms are engaging in expressive activity and is protected by the first amendment and you can leave the conduit questions that come up in the net neutrality context for another day. >> thank you, counsel.

mr. nielsen? >> thank you. it has been a long day. mr. chief justice and may it please the court. this is not the first time new technology has been used to stifle speech. telegraph discriminate based on viewpoint, prompting a national scandal. yet under the platform, western union was making choices not to transmit prounion views. friends or family go to work online these days. platforms that passively host the speech of billions of people are themselves the speakers and can discriminate, there will be no public square to speak of. we know that because twitter has admitted their theory of the first amendment will allow them to discriminate not just based on what is set on the platform, but on the basis of religion or gender or physical disability. that's not the first amendment.

that's laughner 2.0. and implications are gravely serious. as new york explains, if these algorithms our constitutionally protected, platforms might be able to continue selling advertisers the ability to discriminate based on race. or as professor lawrence lessig and tim woo who do not file briefs typically in support of texas, caution not just dates but congress might be powerless to address the social media crisis devastating the lives of kids. hb 230 is a modest effort to regulate that in terms of discrimination. platforms can say anything they want about anything under hb 20. they can say anything they want. users can block anything they don't want. there is no limit on that. all that's left is voluntary communication where people want to speak and listen. this law is nowhere near the heartland of the first amendment

. instead it is democracy and federalism, not a facial pre-injunction. i welcome the courts questions. >> if this was so clearly within a common-law tradition as you suggest, why hasn't congress seen fit to act as texas has? it appears mr. clement suggested that congress has acted in the opposite direction. would you comment on that? >> with all respect to my friend, i don't see how they are reading of 230 is at all consistent with congress. they have policy arguments about how it should work but just read the words of the statute and it doesn't work. his suggestion that congress has somehow kicked out texas, i don't think it's consistent with the text of the statute. i did not hear a lot of textual

argument. that would be my first answer. my second answer i have no idea. , i do know that texas has the ability to protect texas and that's what they've done here. >> you began by saying the platforms want to keep out this person or that person on the basis of race or sex. and then you said that's not the first amendment. the first amendment doesn't apply to them. it respects with the government can do. the government is saying you must do this. got to explain if you don't. that's not the first amendment. >> the first amendment is big and applies a lot of different ways. it is true, for us, we are saying because it is not speech, it is conduct, we can require neutrality. in other cases, the same companies are saying when new york or in other states you cannot have algorithms to hook the kids. they say we have a first amendment right to do that. it's the same first amendment

that says, it will be hard for any state to say you cannot have an algorithm that hooks kids. >> i'm sure if the same of the other states but the question is, they don't have the obligation to act in the same way that you as the state have the obligation to do. they can discriminate against particular groups they don't like, whether it's a group that encourages kids to take the tide pods contest or something else. you have different obligations. >> i guess a couple ways i could respond to that. my reaction coming to the case was the same as yours. wait a minute it's their own , platform. you cannot censor.

they are private. that's the exact same scenario they came up with the telegraph. telegraph had the technological ability to say we are not going to let this type of speech through. >> you are right but you are assuming that they are like the telegraph. it seems to me that is a big part of what the case concerns and i am just not sure that the telegraph had a compelling type of monopoly. if you did not have to -- if you did not want to use the telegraph that was there you did not have another choice. i'm not sure the same thing applies with respect to social platforms. >> so i give you my theory for why common carrier support is here. i agree the cases are really hard to figure out where conduct starts and speech ends and all of that.

you look at the various cases, some say they cannot be reconciled. i'm not sure about that but it's a helpful way to think about it. we know there is a line between speech and conduct. we know that common carriage has always been on the nonspeech side of the line. the conduct side of the line. so if this falls within the common law tradition of what is common carriage, nobody has thought that falls on the speech side of the line. we can't make them say something that they didn't want to say. the point of it is that is a signal to the court to figure out which side of the line we are on. >> that turns on who do you want to lead the judgment over who can speak or not speak on these platforms. do you want to leave it with the state or with the various

platforms? there first amendment has a thumb on the scale in that question. >> it does and that is why i said it is important to go back and look at the history because somewhere the first amendment has to end where everything is covered by the first amendment. the court has said the way that we tell the difference is whether it's inherently expressive and the court has said what they mean by that. they talked about in miami herald you are not a passive conduit. in her early -- in her early -- hurley whether you are intimately connected. this court leisure haddock a case where they talked about what these platforms do. they said they are passively connected to the speech on the platform and they are agnostic about the content. it's one big algorithm that is smashing things together. i think that's important. i want to stress this is a facial posture. you look at the breadth of our statute, we talked about whether

you have to host someone's speech. there is also you just want to read facebook, that's one of the provisions of our statue. want to go online in the morning as he was going on the world, according to their theory, they can stop you for doing that. that's surely public accommodation law. the idea that they don't like somebody because of their race or disability and we are going to say we will not allow you onto our platform, that surely cannot be constitutional. that goes beyond content saying we will not let people even look at what we are selling. it is like a bookstore saying we will not sell you our book. that's different than we will not publish your book. >> do you think there are unconstitutional applications? >> that's a hard question. i suspect there might be. >> what would they look like? >> the one that comes to mind would be, imagine a publisher

did not want to publish the book written by the proud boys. that is the example they use. you might very well have a challenge to that. the problem for them is they picked the most vile example when we would say surely, you can let them on facebook and you cannot take them off because their grandma says something outrageous. there has to be a limit. that is why a facial resolution in this case doesn't work. >> how do you separate one from the other? >> that's hard. right? i would say this court struggled with that in 303 creative. it's really hard to know when something becomes inherently expressive and the court cases like dale about when something happened, those are hard cases but in all of them, the court has had facts and looked at the facts of the case to try to figure out how to apply it,

whether that makes sense here in this situation there is a , million applications of this law that are perfectly fine. they pick some of the most vile possible hypotheticals, ignoring the provision of texas law they never addressed which says under texas law, if you don't want to hear content, they are allowed to make sure you never hear it. so all you have left, they never respond to it but it means all that is left is i don't want to hear this type of speech. it's just voluntary communication. that's a telephone. >> mr. nielsen, you heard during the prior argument a lot of conversation about how broad florida's law is. the last argument about uber, etsy, what platforms does texas

law cover? classic platforms like youtube and facebook? >> that is what the opponent said facebook, twitter and , youtube. >> so apparently if it was the texas courts, if not them, who gets to understand what the scope of the law is? >> we would have to prove it at trial. the law says it applies to any platform with over 50 million users. i'm not sure where some of the other platforms are on that. >> you're making that judgment based on size. as soon is nothing about the definition. we were pointing out the florida law and defining what a platform does and how it works would

encompass uber, for example. but you are assuming based on numbers? >> there is also a separate provision which defines social media platforms as a website open to the public, allowing the user to create an account and enabling users to communicate with other users. for the primary purpose of posting information content. >> so is it the position of texas that that definition covers the classic social media sites? like sites like facebook and youtube? >> yes, your honor. >> and it wouldn't sweep more broadly? two things like etsy? >> i don't think so. if the district court >> the district court thought that it covered whatsapp. do you think it does? >> i do not know the answer. we don't have discovery instead. these are the three we are sure are covered so it might be that there is another reason why it's hard to do this on a facial basis.

it could be what'sapp which looks like a telephone app to me. >> within the big three, there are some email looking function aren't there? i appreciate it is hard to do this because we do not have a record but i understood that facebook which you say would be covered has a messenger function. it looks like email. wouldn't you have to do this at the level of the functionality of these various platforms rather than at those entity levels? >> yes, your honor you would. ,and it is not just that. you would have to also go through different types of verbs including our statute for censoring, including the one they keep ignoring, which is the ability to receive the expression of someone else. you look at the text of the statute. theories would mean that even if you wanted to lurk and listen and see what other people are saying, they can kick you off for any reason at all. you could have someone who never

posted anything or their speech is identical to the speech of someone else, their theory as we can kick you off. that seems to be pretty far into the world of public accommodation. 303 was a narrow pace. if that's what it means, now we are really big. lobster two point -- 2.0. the idea that everything can be protected by the first amendment. >> during the prior argument there was some discussion about , how difficult life will be if these injunctions are dissolved. a parade of horribles and expenses and difficulty with geo-fencing texas or florida. can you address some of those concerns? >> two answers, if i may. there is some suggestion that prohibition on discrimination against texas or part of texas is somehow a trap.

it's not true. that is not with the statute says. there is a separate provision about the jurisdictional hub when you are doing business in texas. even if texas tried to do that there is something cope personal jurisdiction you can leave for them. that argument is not true. the other part i think that is important about this is what is the remedy here? it's an injunction. there is no damages here. it's an injunction. we know it will not flood the courts because the injunction against the attorneys general is limited to the attorney general. there is private enforcement in -- of section seven. and we have a handle cases you don't get damages so it's hard unless you have a really good case to be able to go to court and nobody will send you damages for prevailing. i think that matters a lot in

terms of the real world consequences. they will have some lawsuits by the attorney general for injunction and if we can't prove that discrimination they will , prevail. >> did to say they could stop doing business under texas under this law? >> of course. it's true under the law but it's also just true as a metal of -- matter of personal jurisdiction. under the law, yes. >> how does that work when you talk about facebook? if somebody -- they send something into texas, are they doing business in texas? >> no, but that would be a fun jurisdictional case. the answer as i understand it is you have to purposely avail yourself of the forum. merely because somebody can look at your website if you don't have a purposeful direction, that's generally not sufficient. >> but it is a worldwide sort of thing and people will be sending stuff left and right and you know that as a company. i do not see how they can wall

off texas from the activities of the social media platforms. >> they can. they have the technological ability called geo-fencing which they can carve out. if they wanted to, they could probably cut off this building itself. more than that, it shows up there and if you want to have an account with facebook or twitter or others, there is a contractual relationship. they have customers that are in these places and people say they don't have any customers because they are not charging money. you are the product so they are

taking your data and selling it to the advertisers just why it's important that we recognize that if this algorithm is protected by the constitution, it can take that data and sell to people and have highly targeted ads. they explained that on page 12 of the new york reef. they picked the most vile example which is things we don't usually use in the facial posture and they say that means a whole lot of sales. there are many fine applications that the court needs to remember and not to seida. >> what about terror speech? >> the first response to that is the provision of the statute they ignore which is no user has to receive anything they don't want. >> that still allows the communication of it. most of the universe is gone but the next level of this under texas law, it would not be illegal. i'm assuming a lot of the terrorism will be come join hamas or something like that.

>> no, just the pro-al qaeda messages that were common pre-9/11 and post-9/11 button on this early incitement. >> we put aside the first two levels. they are allowed under the statute to pick any category they want. if they want to keep a category, that's their choice booth and wanted could they category out, they can do that as well. >> so they can't do it on a viewpoint basis, how does that work with terrorist speech? >> it's hard to say that they can predict the category. assume that it is al qaeda. you can't very well's if gone through all of those things, all you have left are voluntary people wanting to talk to each other and people say horrible things on the telephone. i don't think we've ever thought

that we will turn that off because you do not want the telephone providers to say they have the right to censor. i want to talk about orwell a little bit. my reaction coming to this case was similar to yours. i looked at this and i thought these are companies that have their own rights. we don't generally think of censorship as something from private people. it's the government. here's how i came around on this and maybe it will persuade you or maybe not. i said this is something further up the food chain than that ordinary level of discourse. this is just the type of infrastructure necessary to have any kind of discourse at all. that's like going back to the telegraph. this isn't the level of

discourse where they make our arguments built on, this the infrastructure we need to have any sort of discourse at all. if we say we want to have that type of infrastructure not to have censorship on it, that would mean we would have to have a massively increased federal government because it would have to control infrastructure. now you can't discriminate based on this kind of infrastructure of how things work. that is orwell. for me, for these kind of things like telephones or telegraphs or voluntary communication or the next big machine, those type of private communications have to be able to exist somewhere. there has to be some sort of way were we can allow people to communicate. >> is that because of the modern public square? some say there is a distinction

between public and private and that is driving his analysis as to when and under what circumstances this kind of regulation can be done. are you rejecting that because you're suggesting that they merge in the situation given the nature of communications? >> i'm not. i will try again to be artful because it's complicated. i think about the common carrier as a useful tool for discourse. we note there is a hard line to draw. it's hard to tell the difference between fair and miami herald. it will get down to the granular level but it's hard to tell. it needs to have some direction of where to draw the lines. common law and carriages that compass. >> are you suggesting that a common carrier could never have

first amendment protected activity? does this have to be not the level of entity but what are they doing in a particular circumstance? you need to say these are common carrier so everything they do is contact and therefore we can regulate it and i don't know that that's the way we've ever thought about it. >> is what the court thought about it with telegraphs which i think is a useful way of thinking about it. my friend and the government says they are just transmitting speech but that's totally question begging. they have the technological ability not just to do that. the reason that cell phones don't screen your calls or telegraphs didn't -- >> i'm sorry to interrupt but i think you would agree with justice jackson that there might be some speech that these carriers would be their own. >> 100%.

>> you have to take that function by function. >> yes. the other part of this law which is important is to recognize that we you don't say one word about what they can say, i was to disaggregate the function. they can say whatever they want about specific posts or anything, that's fine. but there is a separate thing they do which is facilitating conversations between two people which is like a phone. >> i understand that. what we looked at in the past in the common carrier world is market power. how do you analyze that here? on the one hand, there are network effects that one would take account of in any analysis of market power. that might help you. on the other hand, this is a bit

unlike a telegraph in the sense that there might only be one right-of-way to run the wires. there might be some practical barriers. one could start a new platform at least in theory anytime. fewer barriers to entry but market effects. >> if we are not talking about speech and just in the world of conduct, we are not talking the market power at all. we know that because cell phones are intensely competitive markets, yet there are common carriers. we are seeing there is some reason to focus on market power. it is true, this is not market power of there is just one bridge. but as an economic matter, there is no difference. here is a simple way to look at it -- twitter has its platform and there are a lot of would-be

competitors, including threads from meta, they invested massive amounts of money to try to break up the twitter monopoly and they failed miserably. >> there is some legislative bindings here about market power. what deference do we owe those? >> i would think considerable deference. this is a sovereign state. you don't really treat states like the sec. the state is entitled to make determinations as a matter of law. obviously, it might be so far afield but i sure hope the states get some difference from this court. >> this may be the same question that justice gorsuch was asking, but does the nature of the economy matter to us? the social media platforms and the internet is an incredibly

dynamic market. government, maybe not so much. and yet, it's sort of an inflection point to say the government has the authority by categorizing the participants in this dynamic market as common carriers to take over extensive regulation of them. whether you are talked about railroads or telegraphs, it is not just moving, transportation, it is what the railroads look like, the safety they have to have. they have to have a whole range of things. in the wild west economy surrounding the social media platforms and the internet may be inapt. i don't know if it comes at a time when you got to make that transition or not, but that's a very big step when it comes the extent of government regulation. >> i think that's fair. my response will be that this is

a facial pre-enforcement injunction. we should at least be able to make our showing on the facts. we are confident we can show not just market power but durable, extensive market power here. i don't think it will be all that difficult to make that showing. to the extent the market power is a requirement, i think they haven't shown their likely to prevail on the merits as to that. we are happy to litigate that. it's hard to pick a few examples and say the whole thing failed. >> what besides market power -- i want to give you an opportunity to elaborate on common carrier. he said conduct, market power, what else? >> the main requirements of

common carriage -- this is where common carriage accommodations may be cousins, not twins. it has to be open to the public, not a private associational group. you hold yourself out open to the public with non-differentiated contracts. you have a contract with everybody. that's the first one. the second is it has to be the type of industry that has traditionally been regulated as such. for common carriage, that is where you are talking about things like bridges and telecommunications. >> but then you get into the problem of having to draw the analogy. the chief justice just called it the wild west of the internet and the internet looks a lot different. even these different platforms have different functionalities within it. when you extend, you got grist mills and railroads and cable companies. each time you encounter something new that might qualify as a common carrier, you have to

make the decision if it fits the bill or not. >> i can keep going further. that is why some courts said maybe there are some additional requirements to be put on common carriage. one is market power. i don't know how it works with cell phones. the other was it has to be vested in the public interest. under that, we know if it is state action to block somebody from your twitter account, how could that not be affected by the public interest? >> thank you. >> justice thomas, justice alito. >> i have a problem with laws like this that are so broad that they stifle speech just on their face. meaning -- i think that is with the government has been trying to say. if you have a particular type of speech that you want to protect against or promote, it would be one thing to have that kind of

law. but we have a company here that is also a direct messaging app and there's no question your law covers them but the whole business model is to promote themselves to a particular message and groups of messages. so, they are not doing it indiscriminately. you are basically saying to them if they are out there and they are a common carrier, they can't have this kind of business. >> two responses if i may. the first is as to the particular company, we only are talking about the three largest telecommunication companies on earth. >> ok. >> as to the second point -- >> you are agreeing with them? >> yes, to the largest. even if you agree with all of

that, there is still applications of this law that should be allowed to go into effect. i don't see how they can say they can kick somebody off for off-platform speech of their grandmother. or because they don't like it where you live in texas. if you live in el paso not dallas, you are not as valuable to the advertisers so we will kick you off. surely, that can't be ok. >> justice kagan? justice kavanaugh? >> upon the deference to the legislative findings point, my memory is that there is a trial. >> yes, that's turner 2. maybe there will be a paxton 2. >> right, but there wasn't just congress said this, that is good to go, there was a trial about that? >> sure, we are happy to go to trial. >> that is all i wanted to ask.

>> on common carrier, if a company says we are not a common carrier and we don't want to be, can the state make them into a common carrier? >> that's a great question. that was the first question i had when i came to this case. the answer is no. if you are not a common carrier, you cannot become one. that is why it is important to think of it as a compass to tell you where the line is. i would urge the court if you are interested, we have talked about reading the professor's article. one thing that struck me as strange was wait, they have terms of service allow can they be a common carrier? this court addressed that very problem, the case that he cited is new york central v. lockwood from 1873 where the court said you can't just get out of the

common carriage by contract. if you are a common carrier, you are a common carrier unless you don't open your sl up to the public. >> it seems a little circular but i will end there. >> i just wanted to get a clarification. you said that facebook could geo-fence and pull out of texas? >> of course. >> i was confused because mr. clement was pointing out that you couldn't. i'm looking at 143a.0002 and it says you can't censor or receive information based on the user's geographic location in this state or any part of the state. so you don't understand that to say that based on your location in texas, we are not going to let you post content? >> this is one of the prohibitions of the law, that they can't -- let me say it a different way. there is a provision of the law which is the jurisdictional hook

that says who is subject to this law at all. if you choose to do business in texas, then this provision kicks in and you can't discriminate against people after you've chosen to do business in texas. if you don't want to do business in texas at all, that's a separate provision and you can get out of texas. this is the prohibition on what you can't do if you do to do business in texas, you cannot discriminate against somebody because they are in el paso. >> and doing business in texas is just allowing facebook users to sign up in texas? is it facebook accepting advertising money from texas corporations? >> that question has not been resolved by any of the texas courts. as i read it, you have to have customers in texas. you've entered into contractual relationships with texans. >> justice jackson? >> justice barrett had my same thought. i just want to clarify. so this doesn't speak to a

business decision not to offer services in texas because their requirements are too burdensome? instead, you're offering business in texas and everywhere else but you are prohibiting them from discriminating against people on the basis of their geography, in texas. >> yes, your honor. >> thank you. >> rebuttal, mr. clement? >> just a few points in rebuttal. as to the common carrier, the two classic elements of common carrier status is missing here. one is you put transmitted or carried message from point a to point b. that is not is what's going on here. disseminate means to spread broadly which means you are in the expressive enterprise business. there is zero tradition of

treating entities in the expressive enterprise business as common carriers. the other factor is there is an essential facility like telephone wires went to every house in america so if you are kicked off, you were out of luck. this is the opposite situation where you have lots of other choices. this is not a common carrier. justice thomas made that point. second, public accommodation. i wouldn't be worried about any other accommodation law which prohibits discrimination on the basis of viewpoint. it applies exclusively to speakers. that is a first amendment red flag that you are trying to limit speakers ability to discriminate on the basis of viewpoint. that is a frontal assault on editorial discretion. every other public accommodation law i am aware of works differently. the third point is protecting kids. if you are concerned about protecting kids on the internet, that should be a vote in our favor in this case.

if you cannot do viewpoint discrimination, that disables us from doing many of the things companies try to do to protect use online. the idea of we have to choose between -- if we have suicide prevention, we have to have suicide promotion to avoid discrimination. that should be a nonstarter and protecting kids is important even in the disclosure provision. there is a record on this case on page 161 of the joint appendix, a witness testified and said of these discloser provisions give a roadmap to predators to figure out why the messages are not getting two children. to figure out why they got bounced and worked their way around. this is an important point to end on -- the idea that somehow we are behind the eight ball because we brought a facial challenge. there is a proud tradition of facial challenges to vindicate first amendment rights in this country. that's how many of these cases have been brought. there is an equally proud

tradition of getting a preliminary injunction against a law that is killing speech. as the general pointed out, the party presentation rules have to be foundational. if we had gone into the district court and said this is unconstitutional on its face and they said no it's not because of gmail, we could've had a fair debate about that and modified our complaint of necessary. that's a difficult issue. the only court that deals with this directly said gmail is not a common carrier. we could have litigated all of that but the plaintiff's burden is not to think of any theory to come up with an appeal and then foreclose it in district court.