Sir, This Is A Supreme Court (Not A Wendy’s)

On Monday, the Supreme Court heard the oral arguments over both Florida and Texas’ social media content moderation laws.

Even though the issues were similar, and the parties challenging both laws (NetChoice and CCIA) were the same (and had the same lawyer, Paul Clement, argue both cases), the laws are somewhat different, and so each was heard separately. The Florida case went first, and the Texas case went after. Roberts even jokingly pretended to be surprised to see Clement again, and Clement kicked off the Texas part by laughing and noting he wouldn’t pretend that they hadn’t all just been in the room debating the Florida law.

If you’d like to listen to the oral arguments, you can listen to Florida’s here and Texas’s here (or if you’d like to hear it while a video shows you who’s talking — since, ridiculously, the Supreme Court still refuses to allow video recordings) C-SPAN has you covered with the Florida arguments and the Texas arguments. You can also read the Florida transcript and the Texas transcript, both embedded below.

You can also read plenty of articles summarizing what happened. I think Professor Eric Goldman’s summary is the most useful (and succinct) of those I’ve seen so far:

Today, the Supreme Court heard oral arguments in First Amendment challenges against the Florida and Texas laws. The laws mostly baffled the justices due to the indeterminacy of who the law reaches and which functions are regulated (justices called the laws “sprawling,” “broad,” and “unspecific”). Because the laws are so complex and baroque, the justices aren’t sure if they can decide now that every aspect of the laws are unconstitutionally infirm. It seemed clear from the justices’ questions that at least some parts are, but the justices also struggled with functionalities at the margins (such as ridesharing or email) that may or may not be within the law’s scope. The court’s opinions will surely contain caveats and hypotheticals that will inspire regulators to make further attempts to censor the Internet, even if the court rules decisively for NetChoice on every issue.

Everyone always wants to ask for predictions after oral arguments, but as always, I think reading the tea leaves from the questions asked during oral arguments is an impossible task. I’ll say that I came out of it ever so slightly optimistic. As Goldman noted, enough of the Justices seemed to recognize that something here was deeply unconstitutional under the First Amendment, though they had some questions regarding how far that took them. And that could lead to a weird (and potentially problematic!) ruling that creates a mess.

To me, what the oral arguments turned up was that there was a clear road to getting this right and some Justices (Kavanaugh, mainly, but others too) seemed to get it. But there were a ton of potholes on that road, and I’m not sure if the lawyer for NetChoice/CCIA did enough to pave over all those potholes to stop at least five justices from tripping over one of them.

I won’t predict beyond that, though. We have a few months to go before we learn how the internet will fare.

However, I did want to call out a few of the arguments that came up that struck me as worth highlighting. First up, as stated above, Kavanaugh seemed to get this pretty clearly, which isn’t a surprise given that his ruling in Halleck five years ago caused me to write this headline: Supreme Court Signals Loud And Clear That Social Media Sites Are Not Public Forums That Have To Allow All Speech.

He came back to these issues multiple times, but here was his opening set of questions to Florida’s Solicitor General:

JUSTICE KAVANAUGH: Can I — can I ask you about a different precedent, about what we said in Buckley? And this picks up on the Chief Justice’s earlier comment about government intervention because of the power of the social media companies. And it seems like, in Buckley, in 1976, in a really important sentence in our First Amendment jurisprudence, we said that “the concept that the government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.” And that seems to be what you responded with to the Chief Justice.

And then, in Tornillo, the Court went on at great length as well about the power of then newspapers, and the Court said they recognized the argument about vast changes that place in a few hands the power to inform the American people and shape public opinion and that that had led to abuses of bias and manipulation. The Court accepted all that but still said that wasn’t good enough to allow some kind of government-mandated fairness right of reply or anything.

So how do you deal with those two principles?

MR. WHITAKER: Sure, Justice Kavanaugh. First of all, if — if you agree with me with our front-line position that what is being regulated here is conduct, not speech, I don’t think you get into interests and scrutiny and all that. I do think that the law advances the — the First Amendment interests that I mentioned, but I think the — the — the — that interest, the interest that our law is serving, if you did get to a point in the analysis that required consideration of those interests, our interests —

JUSTICE KAVANAUGH: Do you agree then, if speech is involved, that those cases mean that you lose?

MR. WHITAKER: No, I don’t agree with that, and — and the reason I don’t agree with that is because the interests that our law serve are — are legitimate, and it’s — it’s hard because different parts of the law serve different interests. But I think the one that — that sounds in the — in your concern that is most directly implicated would be the hosting requirement applicable to journalistic enterprises.

So one provision of the law says that the platforms cannot censor, shadow ban, or deplatform journalistic enterprises based on the content of their publication or broadcast. And that serves an interest very similar to the interest that this Court recognized as legitimate in Turner when Congress imposed on cable operators a must-carry obligation for broadcasters.

And — and just as a broadcaster — and what the Court said was there was not just a legitimate interest in promoting the free dissemination of ideas through broadcasting, but it was indeed a — a compelling interest, a highly compelling interest. And so I think the journalistic enterprise provision serves a — that very similar issue.

But there are also other interests that our law serves. For example, the consistency provision, Your — Your Honor, is really a consumer protection measure. It — it’s sort of orthogonal to all that. The consistency provision, which is really the heart of our law, just says to the — the platforms: Apply your content moderation policies consistently. Have whatever policies you want, but just apply them consistently.

JUSTICE KAVANAUGH: Could the government apply such a policy to publishing houses and printing presses and movie theaters about what they show? Bookstores, newsstands?

MR. WHITAKER: No, no —

JUSTICE KAVANAUGH: In other words, be consistent in what kinds of content you exclude? Could that be done?

MR. WHITAKER: I — I don’t think so, Your Honor.

JUSTICE KAVANAUGH: And why not?

MR. WHITAKER: Well — well, I think that there is — the consumer — here, the — the social media platforms, their terms of service, their content moderation policies are really part of the terms under which they are offering their service to users. I don’t think that that really — that that paradigm really fits in what Your Honor is — is talking about. So — but I — but, look, we agree, we certainly agree that a newspaper, a book — and a bookstore is engaging in inherently expressive conduct. And our whole point is that these social media platforms are not like those.

That seems like a pretty direct line of questioning and a very weak response from Florida’s SG Whitaker. The bit at the end where he tries to distinguish social media from a newspaper or a book store is just… kind of pathetic?

I also thought that Justice Kagan highlighting the fact that when Elon Musk took over Twitter and changed the rules, some people liked it and some didn’t, which (as our own article by Corbin Barthold pointed out) completely undermines the states’ arguments:

JUSTICE KAGAN: Do you think so as to this — here, this is a real-world example. Twitter users one day woke up and found themselves to be X users and the content rules had changed and their feeds changed, and all of a sudden they were getting a different online newspaper, so to speak, in a metaphorical sense every morning, and a lot of Twitter users thought that was great, and a lot of Twitter users thought that was horrible because, in fact, there were different content judgments being made that was very much affecting the speech environment that they entered every time they opened their app.

Also great was Sotomayor at the very end of the Florida argument (some of her earlier questions struck me as slightly weird) who went pretty strong on the key First Amendment issues:

JUSTICE SOTOMAYOR: I have a problem with laws like this that are so broad that they stifle speech just on their face, meaning I think that’s what the government’s been trying to say.

If you have a particular type of speech that you want to protect against or — or promote, it would be one thing to have that kind of law, but we have a company here, Discourse, who’s also a direct messaging app.

And there’s no question that your law covers them, but they tell us that their whole business model is to promote themselves to a particular message and groups of messages. So they’re not doing it indiscriminately. You’re basically saying to them, if they’re out there and they’re a common carrier, they can’t have this — this kind of business model.

Also fun was when Florida tried to rely on Rumsfeld v. FAIR and Roberts (who wrote that opinion) basically shot down the argument immediately, leading Florida’s SG to try to argue with the guy who wrote the decision that he was interpreting it incorrectly (though he admitted that was probably a mistake while he was doing it):

WHITAKER: But even more broadly than that, I mean, we know that mere — the — the fact that a hosting decision is idealogically charged and causes controversy can’t be the end of the game because I think Rumsfeld versus FAIR would have had to come out the other way then, because, in Rumsfeld, certainly, the law schools there felt very strongly that the military were being bigots and they didn’t want them on campus.

And yet this Court did not look to the idealogical controversy surrounding those decisions. Instead, it looked at objectively whether the law schools were engaged in inherently expressive conduct.

CHIEF JUSTICE ROBERTS: Well, it looked at the fact that the schools were getting money from the federal government and the federal government thought: Well, if they’re going to take our money, they have to allow military recruiters on the campus. I don’t think it has much to do with the issues today at all.

MR. WHITAKER: Well, Mr. Chief Justice, it’s difficult for me to argue with you very much about what Rumsfeld versus FAIR means.

(Laughter.)

MR. WHITAKER: But let me just take a crack because, I mean, I — I think, as I — as I read your opinion for the Court, you didn’t rely, actually, on the funding aspect of the case to reach the conclusion that what was going on there was not First Amendment protected conduct. You were willing to spot them that the — the — the question would be exactly the same if it were a direct regulation of speech as opposed to a funding condition.

Now… for some of the weirder/crazier/more problematic bits.

There were, unfortunately, but not surprisingly, some ridiculous commentary about Section 230. Justice Thomas continues to get the law exactly backwards.

JUSTICE THOMAS: I’ve been fortunate or unfortunate to have been here for most of the development of the Internet.

(Laughter.)

JUSTICE THOMAS: And the argument under Section 230 has been that you’re merely a conduit, which it — exact — that was the case back in the ’90s and perhaps the early 2000s. Now you’re saying that you are engaged in editorial discretion and expressive conduct. Doesn’t that seem to undermine your Section 230 arguments?

Of course, that’s literally exactly backwards. The whole point of 230 was that websites and web forums were not passive conduits. If they were, they wouldn’t need Section 230’s protections from liability when they did moderate. The whole reason that 230 was written in the first place was because internet forums realized they needed to moderate those who violated their rules, and that would be impossible under a Stratton Oakmont v. Prodigy result where anything you left up you became liable for.

Thankfully, the lawyer for the platforms responded correctly:

MR. CLEMENT: With respect, Justice Thomas, I mean, obviously, you were here for all of it. I wasn’t here for all of it. But my understanding is that my clients have consistently taken the position that they are not mere conduits. And Congress, in passing Section 230, looked at some common law cases that basically said, well, if you’re just a pure conduit, that means that you’re free from liability. But, if you start becoming a publisher, by keeping some bad conduct out — content out, then you no longer have that common law liability protection.

And as I understand 230, the whole point of it was to encourage websites and other regulated parties to essentially exercise editorial discretion to keep some of that bad stuff out of there, and as a result, what Congress said is — they didn’t say: And you’re still a conduit if you do that. No, it said: You shouldn’t be treated as a publisher, because Congress recognized that what my clients were doing would, in another context, look like publishing, which would come with the kind of traditional defamation liability, and they wanted to protect them against that precisely to encourage them to take down some of the bad material that, if these laws go into effect, we’d be forced to convey on our websites.

Ridiculously, a while later on, Thomas basically went right back to the same question:

JUSTICE THOMAS: Could you again explain to me why, if you win here, it does not present a Section 230 problem for you?

There was a lot more back and forth here and it’s not at all clear to me Thomas understands Section 230 even the tiniest amount. Which is… problematic. Especially as he’s been briefed on it quite a bit during last year’s Gonzalez case (and he even seemed to suggest he understood some of that in the Taamneh ruling which he wrote). Did he just… forget all of that?

Gorsuch also seemed to get weird on 230 at times, including suggesting (incorrectly) that the argument the platforms were making was inconsistent with their argument on 230.

JUSTICE GORSUCH: — if they’re not — if the — if the expression of the user is theirs because they curate it, where does that leave Section 230? Because the protection there, as I understood it — and Justice Thomas was making this point — was that Section 230 says we’re not going to treat you as publishers so long as you are not — it’s not your communication in whole or in part is what the definition says. And if it’s now their communication in part, do they lose their 230 protections?

He asked that question to the U.S. Solicitor General, Elizabeth Prelogar (who was very good throughout), who was there to argue mostly against the states, but for a narrower ruling that the companies wanted. Her response was to (politely) explain to Gorsuch why he was mixing up different kinds of things. In the follow-up exchange, Gorsuch made a complete nonsense comment that 230 turns companies into common carriers. Again, it does no such thing.

GENERAL PRELOGAR: No, because I think it’s important to distinguish between two different types of speech. There are the individual user posts on these platforms, and that’s what 230 says that the platforms can’t be held liable for.

The kind of speech that we think is protected here under the First Amendment is not each individual post of the user but, instead, the way that the platform shapes that expression by compiling it, exercising this kind of filtering function, choosing to exclude none of the those things above —

JUSTICE GORSUCH: Let me interrupt you there, I’m sorry, but — but I understand it’s not their communication in whole, but it’s — why isn’t it their communication in part if it — if it’s part of this larger mosaic of editorialized discretion and the whole feel of the website?

GENERAL PRELOGAR: Well, I don’t think that there is any basic incompatibility with immunizing them as a matter of Congress’s statutory choices and recognizing that they retain First Amendment protection —

JUSTICE GORSUCH: Isn’t the whole premise — I’m sorry —

GENERAL PRELOGAR: — for the First Amendment —

JUSTICE GORSUCH: — the whole premise of Section 230 that they are common carriers, that — that they’re not going to be held liable in part because it isn’t their expression, they are a conduit for somebody else?

GENERAL PRELOGAR: No, not at all, Justice Gorsuch. I think, you know, to the extent that the states are trying to argue that Section 230 reflects the judgment that the platforms aren’t publishing and speaking here, there would have been no need to enact Section 230 if that were the case.

Congress specifically recognized the platforms are creating a speech product. They are literally, factually publishers. And Congress wanted to grant them immunity. And it was for the purpose of encouraging this kind of editorial discretion. That’s the whole point of the good samaritan blocking provision, 230(c)(2)(A).

There were two more weird moments that are getting a fair bit of attention. The first was, I presume, the very first “Sir, this is a Wendy’s” moment in Supreme Court history. Except… it makes no sense. It wasn’t used (as some imagine) as a hilarious rebuttal to an off-topic rant. It was in a weird, slightly off-topic rant by Texas’ Solicitor General in response to Kavanaugh asking him how the restriction against “viewpoint discrimination” would apply to terrorist content.

Texas’s SG (for fairly obvious reasons) had no good answer and just started to ramble on, somewhat aimlessly about terrorism, and then about Orwell (who came up a few times — though here, he doesn’t really discuss Orwell beyond naming him) and then saying he originally felt the opposite as he does now about this very case, and then suddenly rambling about infrastructure, then back to Orwell, and then… just throws in a reference to the “Sir, this is a Wendy’s” meme, seemingly expecting the Justices to know what it was. Reports from in the room tell me that the Justices stared blankly at the reference (apparently they’re not as online as the rest of us), and then finally he was rescued by Justice Jackson asking a different question.

I’m posting the whole thing for the sheer cringe of it all:

JUSTICE KAVANAUGH: So when — that last clause, they can’t do it on a viewpoint basis, how does that work with terrorist speech?

MR. NIELSON: Sure. So it’s hard to say with terrorist speech because you’d have to pick the category, but assume that it is, you know, Al-Qaeda. You can’t — you could — you can’t very well say you can have the, you know, anti-Al-Qaeda but not the pro-Al-Qaeda. If you just want to say no one’s talking about Al Qaeda here, they can turn that off.

And then the last point, this is at the very end of the game, so you’ve gone through all of those things, all you have left are voluntary people wanting to talk to each other. And, I mean, people say horrible things on the telephone, and that’s — and I don’t think we’ve ever thought, well, you know what, we’re going to turn — we’re going to turn that off because we don’t want the telephone providers to be able to say — have that sort of right to — to censor.

If I may, I mean, with some hesitance, I want to talk about Orwell a little bit, and I say that with some hesitance. But my reaction coming to this case was very similar to yours. I looked at this and I’m like: Wait a minute. These are companies. They have their own rights. We don’t generally think of censorship as something from the — from private people. That’s the government.

Here’s how I came around on this. Maybe it’ll persuade you. Maybe it won’t. I came around on this to say this is something further up the food chain than that ordinary level of political discourse. This is just the type of infrastructure necessary to have any kind of discourse at all. That’s why I keep going back to the telegraph.

This isn’t, you know, the — the level of discourse where they’re making the content decisions that we make our decisions based on. This is the infrastructure that we need to have any sort of discourse at all.

So, if we say we want to have that type of infrastructure not have, you know, censorship on it, that would mean we would have to have a rapid — a massively increased federal government because it would have to control all the infrastructure. And then we would have, okay, now you can’t discriminate based on this kind of infrastructure of how things work.

That’s not — I mean, that is Orwell, right? So, for me, the answer is, for these kind of things like telephones or telegraphs or voluntary communications on the next big telephone/telegraph machine, those kind of private communications have to be able to exist somewhere. You know, the expression like, you know, sir, this is a Wendy’s. There has to be some sort of way where we can allow people to communicate —

JUSTICE JACKSON: And is that just because of the — the modern public square?

I’ve read this so many times now, and I have no idea how we got from “how does that work with terrorist speech” to “sir this is a Wendy’s.” The leading theory I’ve seen online is that the SG had a bet going with some friends that he could slip that line into an argument. But I’d like to believe that’s too stupid to be true.

It’s possible he was using it as an example to say that people want places to sound off and to express themselves, as epitomized by that meme. That’s the most generous version of it I can come up with.

But… it’s silly even in that context. Because having governments like Texas force all websites to host basically all content doesn’t help with the “sir, this is a Wendy’s” situation, as it now makes every site a place where everyone can filibuster nonsense all the time, and the sites can’t do anything about it.

But, still, it’s kinda hilarious that this meme has made it to SCOTUS.

The other moment that’s getting a lot of attention for being preposterously stupid is Alito asking how much YouTube would weigh if it were a newspaper.

JUSTICE ALITO: I mean, if your — if — let’s say YouTube were a newspaper, how much would it weigh?

And, look, it is a dumb question, though not for the reasons most people think. A key part of the debate (as we’ve discussed) is which precedent is closest to this case, with a focus being on whether social media is more like a shopping mall (or a telegraph provider) or a newspaper. Because different cases could apply to either. And if (the argument goes) social media is more like a newspaper, then Miami Herald v. Tornillo applies, and the platforms win the case (easily).

Alito has made it quite clear he wants the states to win and wants the platforms to lose. He made little attempt to hide this during the arguments. So when it was his turn to talk, he wanted to attack the idea that social media was more like a newspaper. So here’s the fuller context:

JUSTICE ALITO: So 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 — I think — I look at this and I say it’s really not like either of those. It’s worlds away from — from both 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 365 days a year or more than one. But that’s not the situation with even the most prominent of your clients. So I don’t know how we could decide this case by saying — by jumping to one side or the other of this case law.

MR. CLEMENT: Well, Justice Alito, let me offer two thoughts. One, this isn’t the first time you’re wrestling with the Internet. You wrestled with it in Reno. You wrestled with in last term in 303 Creative. And I think the gist of those cases is this is more like the newspaper or the parade organizer than it is like a common carrier.

And then as to the cases, whether you think that this is different from a newspaper, I mean, the arguments that you’re pointing to say this is different are the arguments that those cases wrestled with and said didn’t matter.

So I know you know this, but in Tornillo, it — you know, there was all this language about it being a monopolist, and that was in the context of a local political election where if you couldn’t get into the Miami Herald, like, where else were you going to go? And yet, this Court said that didn’t matter. And the — the — also in Tornillo this Court said, yes, face the constraints, there are some, but our decision doesn’t turn on that. And then in Hurley, there’s a lot of language in the — in the Court’s opinion that says, you know, this is not like much of a message and they let some people show up even if they get their, like, the day of, and the only thing they’re doing is, like, excluding this group.

But, of course, the exclusion was the message that they were sending, and it’s the message the state was trying to prohibit. And that’s kind of the same thing here, which is —

JUSTICE ALITO: I mean, if your — if — let’s say YouTube were a newspaper, how much would it weigh?

(Laughter.)

MR. CLEMENT: Well, I mean, it would — it would — it would weigh an enormous amount, which is why, in order to make it useful, there’s actually more editorial discretion going on in these cases than any of — other case that you’ve had before you.

Because, you know, people tend to focus on the — 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 — they — they sort of 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, just order of, you’d open up one of these websites and it would be gobble-dy-gook. Half of the stuff wouldn’t even be in a language you understood. And even if you controlled for that, you’d get all this garbage you didn’t want.

So, in context, it doesn’t seem quite as “holy shit, was Alito high?” as some people are making it out to be. He’s trying to highlight why social media is different from newspapers, and the dumb idea that sprung to mind was to highlight how much larger social media is than any newspaper.

But it’s still dumb. Because it actively works against the point he thinks he’s making: that we can’t treat social media like a newspaper because it doesn’t have the space limitations of a newspaper. But that wasn’t the reasoning in Tornillo. And, as both Justices Sotomayor and Barrett pointed out during the Florida arguments, whether or not there are space limitations doesn’t much matter because there are “constraints of attention.” Barrett summed it up nicely:

I mean, Justice Sotomayor pointed out that even though there may not be physical space constraints, there are the — the constraints of attention, right? They have to present information to a consumer in some sort of organized way and that there’s a limited enough amount of information that the — the consumer can absorb it.

And don’t all methods of organization reflect some kind of judgment? I mean, could you tell — could Florida enact a law telling bookstores that they have to put everything out by alphabetical order and that they can’t organize or put some things closer to the front of the store that they think, you know, their customers will want to buy?

Even if he thought he was making a point that YouTube is vastly larger than a newspaper, it doesn’t help his underlying argument, because… so what? The size of the venue doesn’t much matter. There’s still editorial discretion happening.

So, rest assured, folks who saw that quote and thought Alito had completely lost his marbles. No such luck. It was just stupid in the more usual sense of Alito misunderstanding the law, not the nature of bits vs. atoms in the storage of information.