issue a ruling.

this runs about 2 1/2 hours. >> cooperate to proceed as if i wasn't here for the first argume so let me focus on what's different about texas. one thing that's different abtexas is its definition of social med platforms excludes website. we can put the gmail issue to one side when talk about texas. it also cles websites primarily focused on news, sports and entertainment. in the fstmendment business we call that content-based discrimination. that's one of the reasons this statute i unconstitutional.

thother thing that's different is that in some respects this stut operates more simply because it forebids my clines from engaging in viewpoint discrimination. we're used to thinking that viewpoint discrimination is a bad thi a the government shouldn't dot. and of course when govnmts do it it is a bad thing. when editors ofpeers engage in viewpoint discrimination that is their first amendment right. it is also absolutely vital to the operation of these websites because if you have to be viewpoint neutral that means that iyo have materials that are involved in suicide preventionoulso have to have materials that advocate suicide promotion. or if you have materials on your site that are pro-semitic, en you have to let on materials onto your site that are anti-semitic. that's formula for making these websites very unpopular to both use a advertisers. so i is absolutely vital. the other things that -- other thing that makes texas a little different ist ast in passing the law texas was even more

explicit in relying on the common carrier analogy as sily labeling websites common carriers makes the first amendment problems go away. that's fundamentally wrong for two basiceans. one, they done ora at common carriers, they have terms of use that exclude varying degrees of conten second, texas can't convert them in plic common carriers by its say-so. i welcome the cou'suestions. >> if these laws go into effect, what steps would your client take to comply. particular addressing the situation of compliance in texas and florida as opposed to nationwide. >> sure, i mean, one of the things they'd contemplate at least wh spect to texas in the first instance, is there some wayo thdraw from the market ites and florida? and of courseex had that in

mind in the statute and specifically said, we essential have to do business in texas and cat discriminate against users based on their. yo graphic -- geographic caon inning to. if we lose this including the idea that we could fced to engage in expressivectity in texas we would fundamentally have tohae the way we provide our service in order to engage -- oer to provide anything like the service we want to while not engaging in viewpoint discrimination we bacay have to eliminate certain arias of spch entirely. so we just couldn't talk abo suicide prevention anymore because we're not going to talk about suici pmotion. i guess we couldn't have pro-semitic speech because we're not going to haventi-semitic speech. we have to figure out some way to tryo engage in even more content moderation or editorial discretion to try to get us to a level where we're more benign and somehow we don't run afoul

of texas' law and then oh t -- then on the disclosure provisions the record reflecks that youtube would have to basically increase its disclosure and appeal process basically 100-fold in order to comply with texas law. i mean i'm happy to talk more about the common rrr issue, i think it's a ctr part of their defense. there was an allusion about section 230res mie clients, the webses as common criers to the contrary, congress specifically 47 u.s.c. 23 subsection 6, which we cite in our brief, it's a provision in the same act of congress that sa ieractive computer service should not be treated a common carriers. i think the thrust of 230 is don't jt a common carrier. don't just put through all of this merl. we don't want that. we want youo ercise editorial discretion in order to keep some of the worst of the worst off the site.

>> all that is true. i acknowledge all of that. only if it's not your speech. and that seems to be iteion a bit with your statement that everything is your speech. justice barrett pointed out a feature, these algorithms arrange, sort, promote cerin posts by users and not others. anis that not your -- not yours, but your client's sech? >> i don't think it's our speech in theayhat section 230 talks about the speech. ani think for these purposes you have to distinguisheten the speech that is the editorial function and the underlying user speech. >> i understand that. i didn't mean to suggest otherwise but there's some editorial speech, your term, going on. >> i think that's right.

>> so thearrier would be liableor its editorial speech? >> i don't think so. i mean, you know, i did actually reread the brief they filed at least in the gonzalez case and i think that you could make a strong argument based on the te of that statute thath kind of editorial functionings not -- is not something that causes you to le your 230 protection. >> so it's speech for purposes of the first amendment, your speech, your editorial control, but when we get to section 230 your submission is that that isn'yo speech? >> yes, as a matter of statutory construction, otheis section 230 ends ubeg self-defeating. the point of sti 230 was to promote editorial discretion and this court wrestled with these su. they're hard issues. i certainly applaud the insthaingt you shouldn't resolve them here. bui don't think that just by recognizing that my clients ar engaged in editorial discretion when they make disns about what's going to ultimately go to the individlid screen that a

user is going to see when they tapnttheir website or their application, i don't think that's theinof speech that is -- you're talk about in the 230 context and if you did, i think you would defeat the fundamental purpose of 230. ey wanted you, they wanted my clients and others, to exercise editorial discretion to keep bad material out. with respect to other ople's speech. seems like we have speech and then we have speech. >> you can't -- u lerally -- i'm happy to argue that case rit now if you want to but you can't have -- >>t's a hard question for us, it's perfectly relevant here and very important. 230 preempts things. and we don't know how much of this law it preempts. >> absolutely. but this law is unconstitutna in all its applications, and certainly it has no plainly legitimate sweep you don't have to rea t 230 question dict here. i would say whenoue reading those statutory rm in 230, you wouldn't sweep in editorial direon. if you do you'll defeat the

fundamental purpose of section 230. >> what about editorial scretio- >> i want to raise with you the question i raised with t solicitor general who offered a outful response. many of your clien' rms of service, while resvi some editorial discretion, and i think about most of them as speaking about the things covered by 230, ocenity. etc. go out of theiray to promise an ope forum to all members of the public. ango 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 vie sll flourish. that's not true for all of you clients, but it's true for some of them. many of them. what do we do about that? >> so i would say that, you know, it's true. some omy clients, and some more than others, i think all of the terms of service as the general said, go on t say, and

there's certain things that are out of bounds. and i do think -- it's a -- i this a factually through tru thing that my clients, in the inas long as you stay within the line, they don't want to promote d open dialogue and fair dialogue. if you lk the center for growth and opportunity brief, it showyosome conservative voices have flourished onhe websites. ben shapiro and dai we are killing it on facebook. we do wt broad discussion. there's some stuff tha is just out of the lines. i don't think it's as simple to say it's just the 230 stuff. again we h a debate about what otherwise objectionable means. but i think that my clients are getting a lot of pressure to be paicarly careful about things that are damagin to youths. i think in that context ty want to err on the side of keeping some bad merl off. >> you mentioned a few times. let me press the other way though. doesn't it also hold that on your view, part of the editorial discretion of that platform

would be that it could use algorithms designed specifically toryo attract teens to addiction? or suicide? depression? those kindz of things as well? that would be part of their editorial discretion too. >> a website, i don't think my clients -- >> i don't mean to cast aspersions on anyone. i think it a natural consequence of your position isn't it? >> there would be protected first amendment activity with that very different website with a business model that i don't think would stay in business ve long and it is possible, as the united states has pointed out in its brief, that if you have a different concern and you identify a different government interest that maybe the governntight be able to do something particularly if it does in it a content-neutral way to address those concerns. g back to something wrusties kavanaugh pointed out before, i thinkhaboth texas and florida ha been pretty aggressive abo tir government interest re being something that is not just not a legitimate interesinhe first

amendment contextut is affirmatively prohibited which is the idea that we're going to level the -- we're going to amplify some voices and we're going to make certain -- put burdenonrivate parties so some voices can be louder than others or some people can get a boost from what theye tting in the marketplace of ideas. the only place this court has ever allowed that was in turner. and mean justice kavanaugh you pointut, one of the things therwa content neutral. i think the critical thing in turner is that bottleneck or chokehold on the content that went into individual houses. and i think that's what made what was otherwise an imrmsible government interest a legitimate government interest in at narrow context. maybe you cou say the same thing, i don't know if it's still a good law but there's a scarcity rationale. flos scarcity rationale on the internet and this court said that in 1997 in the reno case. >> can i ask you about a

distinction between two possible kinds of anally kf the texas law? so one is the application that prevents you from keeping out certain speech that you want to keep out. you saidnti-semitic speech. it could be an of a number of things. as i understand it, the texas w also prevents -- prevents you also from doing somethi else which is suppose you wanted torent anti-semites from posting anything. you know, you want -- you just wantedo y that they're a class of people we're not eve going to let them post cat videos should we tnk about that set of applications differently? >> i don't think you should think of it radically diertly. it's a different application. but i think it's the same idea. which is there are some speakers and i think this is going to be, you kn, ry few, but there are some speakers where they are sossociated with a particular ewint that their -- it formed essentially all of thei speech and the speech of other people in theor.

if you have a white supremacist onouspeech forum and they're posting there, it's going to cause a lot of other people t say what is that person doing? what's going on here? y e all the dog photos white? 'soing to fundamentally change the dynamic on the bsite. and i think a website trying to promote a particular discussion has an -- air amendment right to exclude those people and in pctices this, you know, what is us to exclude sort of, you know, sexual predators which is something again the government can't do. packingham, but facebook does. anthe's certain other people, you know, very distinc viewpoints where it's -- in a sense we know the viewpoi i problematic, even if the particular post is not. >> but mr. clement. i just wanted follow up on that. it seems to me that justice kagan's question gets to the distinction in 303 creative between turning people away and the speech that you have.

if you think about it as violencing someone you let on your ptfm that seems more like speech or connt moderation to the ereme, for example. but i assume t implication of your answer to justice kagan is at you could tell the anti-see mitt we're not open for business to you. right? >> you can tell that person that our speech forum inoopen to you. and i think that wt makes it different that texas is focused on speech-orriented atrms. if you're in the business of speech and you have somebody, and aithis is not sort of other prohibited statuses. this is viewpoint. and so you are a norus anti-semite, we don't want you to participate in this conversation. >> religion then. >> sure. and i want to have a catholic website. i can keep off somebody who a notorious protestant. i want to preserve -- i nt to preserve the future the scsion on my forum. it's a private forum and the vernment can't tell me as a private party let the protestant into the catholic party.

i don't think so. >> can i ask you abotion 2? i don't anything has been said about it s so you say that section 2's individualized explanation requirements violate the first amendment because they impose a massive burden, right? th'sour argument? it seems to that european union has imposed exactly the same, pretty much t same individualized explanation requiremenonnybody who operates there that texas has. and i'm not saying whateverhe european union says is ok is nstutional here. but just on the practical question of whether it's to much of a burden, if it's not too much of a burden for your clients to do it in europe how can it be too much of a buen for them to do it ear? >> as i understand the requirements they're different. they're materily different. and in a sense the european io provision has sort of a built in reasonably practical

provision right into what you have to do. you only to do what's reasonably practical. this is an absolute requirement respond turnover takedown and that over a billion takow of comments in a quarter for youtube and there's also an appeal process which i don't think is co-extensive with the process in eop just as a practical matter i think this is more burdensome. as you said, the first amendnt does not apply in europe and i think that having this kind of disclosure requirement on what is reay editorial discretion decision is potentially, mn, hugely problematic. if you took this and said "the w rk times," you have to tell us why you rejected my weddg announcement, we only ta le 10% of the wedding announcements, you have to tell me. ev if you automiez that and said, one if yowen't rich enough, two if you wer't connected enough in new york soalircles and three we just didn't like the way you look. >> some of your clients are

humongous. if you want to says this unduly burdensome then you have some obgaon in the district court to try- it enough for you to say this is a huge sphwhurd so knock thi out. didn't you have to provide something to show how much, what resources would beeqred? why that would be too much for these megaliths. >> we did. there's more of a recorinhe texas case than the florida case. the witnessor youtube in their declaration specifically said this would be 100 times more burdensome tha their current process. so there is a record on this. it is incrediblyurdensome. >> the 230 argument is intriguing to me. the distinctions that you're awing somehow, to some degree, escape me. ist ur position that you are exercising editorial discretion

as to everything but, say, youtube, as to every video that is placed on youtube, you ha exercised editorial discretion atou want that on youtube? >> i would say that we have exercised some edorl discretion to not sort of eliminate thafr the site entirely and as to an iividual user we've used what are typically in many cases neutral algorithms. some of them are not neutral. even in the briefs i think made quite clear, although at a certain point some algorithms wereeual between rice pilaf and terrorisms, there were other efforts to -- effts to get terrorist stuff off those sites. >> if you have a newspaper and you published the content that appears in every single one of the videos on youtube that you allowed to be to b included you would be liable potential

for the conte othat material. i don't understand the rationale for 23 if it wn'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. dot understand how it can be both. it's your messagwh 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 tnk we're being inconsistentndhat i would -- i would tryo aw theagey to a good, old-fashioned anthology. if i put together an anthology of 20 short stories, everybod understands that the underlying short stieare still the product of the individual author but as the anthologist, as the editor of this compilationho decided which 20 got in, which ones didn't,'m responsible for those editorial discussions. those decisions.

those are both proct it's for amendment decisions. you can distinguish between the underlying material and the editorial decisions. inomn law the publisher was sponsible for both. and so they were still liable for what the republishing the author's work. that'shacongress wanted to get rid of in 230. they wanted to essentially give our clients an incentive to weed t of the anthologieshetuff that was harmful for children and prletic. that's why i don't tnk it works to say oh, well, then that's your sech so you're you're liable de230. 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 consider t be obscene, you put together an antlogy that included obscene material you could be sued.

today if you put together an anthology o essays, nonfiction writing, and there's defamation in there, then t publisher coul be pseudo. exercising editorial disetn 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 oy y to avoid liability with cmon 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 ses. you say this is just like a wsper basically. it'sik 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. 's worlds away from -- from be o those. it's nothing like a newspaper. a newspaper has space litations. no matter how powerful it is it doesn't necessarily have the same power as -- asome of your clients. but put that aside. newspape overtly send messages. they typically have an itorial. they may have an editorial inted 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 cas 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 timyore wrestling with the internet. you wrestled with it in reno and

last term in 303 creative. this is more li t newspaper or parade organizer than a common carrier. as to the cases, whether you think this isifferent from a newspaper, mn the arguments that you're pointing to to say it's difre are the argues that those cases wrestd th and said didn't matter. i know you know this, but there was all this languagabt it being a monolt, and that was in the context of a lal political election, if you couldn'tet 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 opio that says, you kw, this is not like much of a message. they l 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 at 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] >> mean it would -- it ul weigh an enormous amount which is why in order to make it useful there'sore editorial dires going on in these cases than any other case that you've had before you. because if -- people tend to fos on the users that get knocked off entirely and end up on the cutting room floor. but both these status so regulate the way that these social websites get you down to something that's actually ubl to an individual ur. and in fact iyou tried to treat esentities like a true commonarrier, so first in, first ou order of, you'd open unwf tse websites and it would be gobbledy-gook, half of it in a language you didn' understand. and you'd get allstuff you didn't want. >> i'd like to go back to the

individualized explanation requiren 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? >>eah. >> so it was the district considerate who looked at the amou of material you submitted and i know your declaration, youtube said it woulde a burden, 100 times more than it does now. i don't know what the qnty 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 reason if you have a few individualized

ones you could just explain those individualized. at do we do with that dispute? because it is a facial challenge. >> it is fial challenge. it's a preliminary injunction. we haveeen over some of that. here tre was -- there wasn't just declarations. there were depositis taken. there was a record that was put together on all of this. d texas was taking a slightly different view of what the burdens of the -- of textw were there. so i think on tt,ou look at the railroad borthe district court you should affirm the district court's preliminary injunction. i also think even what they say on page 44 of their red bef is that, you know, you can do this in a relatively less burdensome way as long as your editia policies are sufficiently ecific and particularized. and what they're basically saying is, you could change your editorial policies 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? >> i just have a quick question. so part o the dynamic that i think is going on in these cases is the ft that this regulation is enacted by the democratically elected representativ oa state. and i suppose if the state's regulation of these platforms gets toournsome 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 the really wanted. that's sort of how i'moong at this at a meta level. what cght my attention was your response to the chief justice when you suggested that yourlit couldn't withdraw from the state of texas, bause you read the provisions related

to censorship and geography as ensuring that you don't do so. i had not adhat provision in that way. can you say more about why say more abouthyhat was your interpretation? sure. this is not do not discriminate against tens the fact that it is preventing us from discriminating against somee texas is basically telling us that we cno 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 m aut it, call the number on cam plate -- and complain. we cnodo 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 rea it a

different way, youreaying it is necsa, i guess this dovetails with my coerabout 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 ofhis 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 exessed, and you cannot censor them based on eilocation in your state or another part of e ate. i guess doot 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 y of showing this is w of

regulating activities. so, i do think that is the right reading. the fa tt it is geographical location in texas is kd a clue to that. it is not somethg ere if you are a xa fan you are , protected matter what in america. it is that you cannot do the geo-sensing that you might do to mply with an idiosyncratic state law. just for the sake of mpteness, not part of the preliminary induction, there are challenges to these provisions and it's one state trying to regulate everybody so thats part of the case that will be here but it isot here. all this is is priminary injunction that runs to my clients. thistate has a small universe of people but if there is someone else out there who is not e my clients and not covered by this injunction the , statute could keffect on those people in the same is tr in florida. >> thank you, counsel.

>> mr. chief justice, if it may please the court, i want to pick up with e estion justice alito asked to my friend about the idea that the social media atrms don't perfectly fit into either analogy or paradig i want to acknowledge the rc of that intuition. they operate as a massive scale that goes beyond any particular parade or beyond a pticular newspaper. i think the right thing to do with that inition is to recognize it's not like you c exempt them from the first amdment. they are obviously creating something that is inherently expressive a ting this quantity of spee otheir website and curating it and making selectivity decisions and compiling itnta product users will consume. the firsamdment applies but i think oskind of concerns about how the social media atrms and how they look somewhat different from the other kinds of expressive

products this court has reviewed in prior cases can comin the question of whether the first amendment is satisfied with respect a particular regulation. we think it's not satisfied here herewe think 's not satisfied here because of the way texas has designed h l. it's t necessary here to figure out how the first amendment applies to new technology in general and every possible website in the inteet in particular. this law is a clear defect texas has tried toouermand the protected speech positions of the platform and the only justification is offered to th 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 e rst 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 governntngaged in similar conduct.

your answer was of coursth 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 gornnt and the private party say petitioners here and the governme crdinating efforts. how would you respond to that? >> i think the position where --e are offering here and that thposition the court will consider next month and the mercy case are entirely coisnt. we acknowledge that if the government actually coerces the platforms and takes over there editorial decision-making, the platform coulde emed a state actor and would b subject to first amendment scrutiny.

we vigorously disputes that is acally happening in the federal government has engaged in a kind of coercive conduct and we dispute the legal anrds that were applied in that case. there is no inherent tension here. the federagornment can act and criticize the social media platform content moderation desis using the bully pulpit express views and at the state disagreed with how they were exercising their content moderation, they cou he done the same by criticizing them are urging them iluence them to adopt a separate standard. the state said they're going to pass aawhat 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 accommodio laws. the united states is often in a sion of defending a public accommodations laws and insisting that they be

vigorously enforced. w you see what texas is trying to do as nstent with the broader stance about public accommodations laws? >> i want to sta o potentially some separate ground with respect to public accommodations laws on a particular status. we think theaware valid on their face and they serve compellingovnmental interests. to the extent you are looking at hoornary public accommodation law operates, the refusal to deal and rv we think that's a regulati of condu. ordinarily, there would be no first amendment problem thhe application of that law. i acknowledge that he gets more complicatewh those laws are applied to a business that is providing an ereive product in cases like hurley, certain applications, sometimes the public accommodations law has give way tfit amendment

interest. the court haner suggested that the refusal to deal are served based on stus and with research respect to an associatiowod fail under first amendment scrutiny. instead, you look at 303 creative and there the concern was about changing the message or a case like hury. gay and lesbian individuals cod march, but you couldn't change the message by hauling a particular sign. we recogzehere 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 st, that law would be valid. i want to briefly address the question about cba presumption -- preemption underecon 230. i want to say there are unresolved isss re. i would warn the court away from resolving how much conduct 230

protects and howhainteracts with the texas law here. the only point i would make is that they were questions about at it means to act in good faith and questions abouwh it means for the platform to take down content that's otherwise objectionae. however those diut might shake ouin particular case, surely texas is not saying its tire law is preempted. anfuy 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 ediri provisions versus what 230 would offer on the other hand whethe , that is a big category or littleatory all of the , things in that category constitute protect decisions by the platform that haven't been adequately justified. and i that is all you need to say about the preemption issue in thi case. >> the legislative body enact a law requiring viewpoint

neutrality in some area and it do so because it is concerned that people who express a particular viewpoint are suffering discrimination. ishaunconstitutional 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 mit be significant governmental interest in being able to protecnst that kind of discrimination. >> unless there are any further >> can i do one more? >> sure. governments spend a lot of time defenet neutrality so maybe i should have asked you this with respect to the florida law. just given the breadth of that law and why arentnet service provide in your view so difre and what if they wanted to make certain content distinctio? >> internet service providers

are fundamentally diert because they are engaged in transmitting data in order to make websites accessible and that is not inherent expressive. they are prodi 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 compilati otheir own. we would puthein the same category as telephone and telegraph companies orpshere you cod y they are literally facilitating the transmission of speech, but they are not creating an expressive product that could implicate the first amendment principles at ak you might ask if they wanted to start discriminating with respect to the services for particular kind types of websites. mae an internet service provider decides to slow down service to a streaming site because it wants direcinrnet traffic to another website or streaming service. we think net neutritcan come

in there and say you are not allowed to discriminate based on contt. that's because there would n expressive speech or cpition you could attribute to the internet service provider itself. people don't sign up with coasor verizon to give them curated access to the internet. they are engaging in service with t company's because they need someone physically to transmit the data so they can get access to the whole internet. >> ask one? i don't have to buy ng you position. to rule for your [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 th's walled off. >> we think the platforms are engaging in expressive activity and is protected by the first amendment and yocaleave the conduit questions that come up in the net neutrality co for another day. >> thank you, counsel.

mr. nielsen? >> thank you. it has been aon day. mr. chief juicand may it please the court. is is not the first time new technologyaseen used to stifle speech. telegraph dirinate based on viewpoint, prompting a national anl. t under the platform, western unn was making choices not to transmit prounion views. friends or family go to work online theseay platforms that passively host the speech of billions of people are themselves the speakers d can discriminate, there will be no public square to speaof wenothat because twitter has admitted their they the first amendment will allow them to discriminate not just based on what is set on the platform, but on the basis oregion or gender or physical disability. a's not the first amendment.

that's laughner 2.0. and implicationsre gravely serious. as new york explains, ifhe algorithms our constitutionally protte platforms might be able to continue selling advertiserthability to discriminate based on race. or as professor laen lessig and tim woo who do not file briefs typically in supporof texas, caution not just dates but congress might be powerless to addre t social media crisis devastating the lives of kids. hb30 is a modest effort to regulate that tms of discrimination. platforms n y anything they want autnything under hb 20. they can say anything they want. users can block anything they don'want. there is no limit on that. all that's ft is voluntary communication where peoplean to speak and listen. this law is nowhere nearhe

heartland of the first amendment . instead its mocracy and federalism, noa cial pre-injunction. i welcome the courts questions. >> if this was so clearly within a common-law tradition as you suggest, why hasn't ngress seen fit to act as texas has? it appears mr. clementugsted that congress has acted in the oppoteirection. would you comment on that? with all respect to my friend, i don't see w ey are reading of 230 is at all consistent with congss they have policy arguments about how it should work but just read e rds of the statute and it doesn't work. his suggestion tt ngress has somehow kicked out texas, i don't think it'consistent with the text of the statute.

i did not hear a lot of texal argument. that would be my fir awer. my second answer i have no idea. , i donow that texas has the ability to protect texas and >> you began by saying theere. platforms want to keep out this person or that person on the basis of race or sex. and then you sd at's not the first amendment. e rst 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 sayi wn new york or in other states you cannotavalgorithms to hook the kids. they say we have a first amendmenrit to do that. it'thsame first amendment

that says, it will be hard for any state to say you cannot he an algorithm that hooks kids. >> i'm sure if the sa othe other states but the question is, they don't have the obligation to act in the same way thatous the state have the oblatn to do. they can discriminate against particular groups they don't like, whether it's a outhat encourages kids to take the tide pods contest or something else. you have different obligations. >> i guess a couple ways i could respond tohat. 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 mecenario they came up with the telegraph. telegraph had the technological ability to say warnot going to let this type of speech through. >> you are rhtut you are assuming that they are likth telegraph. it seems to me ats 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 he to -- if you d not want to use the telegraph th w there you did not have another choice. i'm not sure the same thing applies with respect to social platforms. >>o i give you my theory for why common carrier support is here. i agree the cases are really hard to figure out whereonct starts and speech ends and all

of that. you look at the various case 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 nonspch side of the line. theonct side of the line. so if this falls within th common law tradition of what is common carriage, nobody has thought atalls on the speech side of the line. we can't make them say somein athey didn't want to say. the point of it ist is a signal to the court to figure t 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. doou want to leave it with the

state or with the various platforms? there first amendmenhaa thumb on the scale in that question. >> it doesndhat is why i said it is important to go back and look at the history because somewhere the first amendment has to end wherevething is covered by the first amendment. the court hasa the way that we tell the difference is whether it's inherently expresvend the court has said what they mean by that. th talked about in mia herald you are not a passive conduit. in herar -- in her early -- hurley whether you are intimatelyoncted. this court leisure haddock a ca where they talked about what these platforms do. they said th a 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 thiis facial posture. you look at the breadth of our statute,e lked 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. wa tgo online in the morning as he was going on the world, according to their theory, they n stop you for doing that. that's surely public accommodiolaw. the idea that they don't like somebody because othr race or disability and we are going to say we will not allow you on o platform, that surely cannot be constitutiol. that goes beyond content saying we will not let people even look at whawere 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 the e unconstitutional applications? >> that's a hard questio i suspect there might be. >> what wod ey look like? >> thenehat comes to mind would b 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 vilexale when we would say re, 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 in03reative. it's really hard to know when sothg becomes inherently expressive and the court cases like dale about when something happened, those are hard cases but in all of them, the court s d facts and looked at the factof the case to try to gure 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 lawhe never addressed which says under texas la iyou don't want to ar content, they are allowed to make sure you never hea it. so all you have left, they never respond to it but it mnsll that is left is i don'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 w is. the last argument aboutbe etsy, what platforms does texas

la cover? classic platforms like youtube an 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 undstd what the scope of the law is? >>e uld have to prove it at ia thlaw says it applies to any platform with over 50 milln users. i'm not sure whe se of the other platforms are on that. >> you're making atudgment based on size. as soon is nothing abo t definition. we were pointing out the florida law d fining what a platform does and how it works would

encompass uber, for example. but you are assuming based on mbers? >> there is also a separate provision which fis social media plfos as a website open to the public, allowing the user to create an account and enabngsers to communicate with other users. for th primary purpose of poininformation 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? o ings 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 t ow the answer. we d't have discovery instead. these are the three we are sur are covered so it might be that there is another reason why it' hard to do this on a facial basis.

it could be what'sapp w oks like a telephone app to >> within the big three, there are some email l functions, aren't there? i appreciate it is hard to do this because we do not have a record but i understooth facebook which you say would be covered has a messenger function. itoo like email. ul't you have to do this at the level of the functionaty of these various platforms rather than at those entity levels? >> y, your honor you would. ,a it is not just that. you woulha to also go through different types of verbs including our statute for censoring, including the one theyee ignoring, which is the abity 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 ckou off. that seems to be pretty far into thworld 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 prd by the first amendment. during the prior argument there was some discussion about , h dficult life will be if these injunctions ardiolved. a parade of horribles and expenses a dficulty 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 discrimatn against texas or part of texas

is somehow a trap. it'not true. that is not with the statute says. there is a separate provision about the jurisdictional hub when you are doing business in tes. 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 i the remedy here? i'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 atrns 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 toourt and nobody will send you damages for prevaili. i think that matters a lot in

terms of the real world conseqnc. they will have some lawsuits by the attorney general for that discrimination they willove , prevail. >> did to say they could sp doing business under texas under this law? >> of course. it's true under the law but it' also just true as a metal of -- matter of personal jurisdiction. under the law, yes. talk about facebook?k when you if somebody -- they send something into texas, are they doing siss in texas? >> no, but that would be a fun juriiconal case. thanswer 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 company.

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

taking your data and llg it to the advertisers just why it's imrtant that we recognize that if this algorithm is proct 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 ef 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 th 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 counation of it. mo of the universe is gone but the next level of this und 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 picany category they want. ifhewant to keep a category, that's their choice booth and waedould they category out, they can do that as well. >> so they can't do it on a viewpoint basis, how does that rk 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 througalof those things, all you have left are voluntary pele wanting to talk to each other and people say horrie things on the telephone. i don't think we've ever thought

that we wi tn that off because you do not want the telephone providers to say they haveheight 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 a ihought these are companies that have their own rights. we don't generally think of censorship as something from private op. 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 keoing back to the telegraph. this isn't the level of

discourse where they make our arguntbuilt on, this the infrastructure we need to have any sort of discourse at all. if we say we want to havth 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 u n't discriminate based on this kind of infrastructure of how things work. that is orwell. for me, for these kind of things like telepneor 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 >> is that because of the modern public square?

some say there is a distinction between public and private and that is ivg his analysis as to when and under what circumans this kind of regulation can be done. are you rejecting that because y're suggesting that they merge in the situationiv the nature of communications? >> i'm no 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 aw it's hard to tell the dfence 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 ofhere to draw the lines. common law and carriages that compas >> are you suggesting that a

common carrier could never have first amendment protected activity? does this ha tbe not the level of entity but what are they doing in a particular circumstance? you need to say these are common carrr so everything they do is contact and therefore we can gulate it and i don't know that that's the way we've ever thought about it. is what the court thought about it wit telegraphs whi i think is a useful way of thinking about it. my friend and the government says they are just transmitting speech but th's totally question begging. they have the technological ability t st to do that. the reason that cell phones don't screen your calls or teleaphs didn't -- >> i'rry to interrupt but i think you would agree justice jackson that there might be some speech that these carriers would be eiown. >> 100%.

>> you have to take that function by function. >> yes. thother part of this law which is important is to recognize that we you don't say one wo about what they can say, i was toisgregate the function. they can say whatever th wt abt ecific 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 ait

unlike a telegraph in the sense that there might only o 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 rriers to entry but market effects. >> if we are not talngbout speech and just in the world of conduct, we are t lking 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 so reason to focus on market power. it itr, this is not market power of there is just one id. but as an economic matter, tre 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 il miserably. >> there is some legislative bindings here about market power. what deference do we owe those? >> i would think considebl deference. this is a sovereigste. u 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 ihope the states get some difference from court. >> this may be the same question that justice gorsuch was asking, but does the nature of the economy matt to us? the social media platforms and the inteets an incredibly

dynamic market. government, maybe not so much. and yet, it's sort of an inflection point to say the governmentashe authority by categorizing t pticipants in this dynamic market as comm carriers to take over extsi regulation of them. etr you are talked about railroads 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 tt's fair. my response will be that this is

a ci pre-enforcement injunction. we should at least be able to make our showing on the ct we are confident we cash not just market power but durable, extensive market pow he. i don't think it will be all that difficult to make that showing. to the extent the market power is ruirement, i think they haven't shown their likelyo 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, rk power, what else? >> the main requirements of

common carriage -- this is where common carriageccmodations may be cousins, not twins. it has to be open to the public, not a private associational group. u ld yourself out open to the public with non-differentiated contracts. u ve a contract with everybody. that's the first one. the seconist has to be the type of industry that h traditionally been regulated as such. for common carriage, that is where you are talking about things like bridges and telecommunicatio. >> but then you get in t problem of having to draw the analogy. the chief juicjust called it the wild west of the internet and the internetoo a lot different. even theseifrent platforms have differentunionalities within it. when you extend, you got grist mills and railroads and cable companies. each time yoenunter 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 me courts said maybe there are some additional reirents to be put on common carriage. one mket power. i don't know how it works wh cell phones. the other w it has to be vested in the public intes under that, we know if it is state action to block somebody from your twitter account, how could that not be affected the public interest? >> thank you. >> justice t justice alito. >> i have a problem with laws like this that are so broad that they stifle speech jt their face. meaning -- i think that is with the government has been trying toay if you have a parcur type of speech that you want to protect agnsor promote, iwould 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 yo law covers them but the whole business models promote themselves to a particular message and groups of messages. so, they are not doing it indiscriminately. you are basically saying to them ifheare out there and they are a common carrier, they ca'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 lawha should be allowed to go into effect. i don't see how th c say they can kick somedyff for off-platform secof their grandmother. or because they don't like it where you live in texas. if youivin el paso not dall, you are not as valuable to the advertisers so we will kickff. surely, that can't be ok. >> justice? justice kavanaugh? >> upon the deference to the legislative findings point, my memo ithat 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 trial about that? >> sure, we are happy to go to trial. >> thaisll 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 washeirst question i had when i came to this case. the answer is no. y are not a common carrier, you cannot become one. that is why it is importa t think of it as a compass to tell you where the line is. i wod urge the court if you are ierested, we have talked about rding the professor's ticle. one thing that struck me as strange was wait, they have terms of service allocathey 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 confud cause mr. clemenwapointing out that you couldn't. 'm looking at 143a.0002 and it says you can't censorr ceive 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 th prohibitions of the law, that th can't -- let me say it a different way. there is a provision of the law which is e risdictional hook

that says who is subject to this law atll. if you choose to do business in texas, then this provision kicks in andouan't discriminate against people after you've choseno business in texas. ifouon't want to do business inexas at all, that's a separate provision and youan get out of texas. this is the prohibition on what you can't do if you do to do business in tex, you cannot discriminate against somebody cause they are in el paso. >> and doing business in texas is jt lowing facebook users to sign up in texas? is it facebook accepting advertising money from texas corporations? >> tt estion 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 spk a

business decision not to offer services in texas because thei requirements are too burdense? instead, you're oerg business in texas and everywhere else but you are prohibiting them from discrinang against people on e sis 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 claiclements of common carrier stuis missing here. one is you putramitted or carried messagerom 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. ere is zero tradition of

treating entities in the expressive enterprise busins as common carriers. the other factor is there is an essential facility like telephone wires went to every house in ameri sif you are kicked off, u re out of luck. this is the opposite situation where you have lots of other choices. this is not a comm carrier. justice thomas made that poin second, public accommodation. i wouldn't be worri aut 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 e ying to limit speakers abity to discriminate on the basis of viewpoint. th is a frontal assault on editorial discretion. every other public accommodation law i am aware of rk differently. the third point is protecting kids. if you are concerned about otting kids on the internet, that should be aotin our favor in this case.

if you cnot do viewpoint discriminati, at disables us from doing many of the things companies try to dtorotect use online. the idea of we he 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 ca on page 161 of the joint pendix, a witness testified and said of these discloser provisions give a roadmap to predators to figure out why the messages are n gting two children. to figurouwhy they got bnc and worked their way around. this is an important point to d -- the idea that somehow we are behind theit ball because we brought a facial challenge. there is a pudradition of facial challenges to vindicate fit amendment rights in this country. that's w many of these cases have been brought. there is an eqll proud

tradition of gti a preliminary injunction against a law ats killing speech. as the general pointed out, the party presentation rules have to be foundational. if we had gone into the district couransaid this is unconstitutional on its face and they said no it's t cause of gmail, we could've had a fair debate about that and modified our complaint of necessary. that's a diicult 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 pintiff's burden is not to think of any theory to come up with an appeal and then foreclose it in district court.