#340: Making Sense of the SCOTUS Internet Speech Cases

[Music] It is a remarkable time in the law of internet speech. Of course, a litigant before the Supreme Court recently wrote, the First Amendment applies with full force to websites. That litigant cited the seminal case of Reno versus ACLU, 1997 Supreme Court decision. Series of upcoming cases will put that proposition to the test. Last December, the Court heard oral argument in 303 creative versus alainus. The issue there is whether a website designer can be compelled to speak a message with which she disagrees in the form of being forced to design a website for a gay wedding. Pending before the Court are cert petitions in Moody versus Net Choice and Net Choice versus Paxton. At issue in those petitions are Florida and Texas's social media speech codes. Those are SB 7072 and HP 20 respectively. The issue is whether a state can force a large private social media platform to disseminate messages that it believes are dangerous or harmful or abhorrent. Or on the contrary, do those large social media platforms have a right to editorial discretion over the speech they disseminate? We could be waiting a bit for the Court to decide whether to review those because the justices have called for the views of the Solicitor General. I don't think the Solicitor General is going to issue a brief until after the Court has decided Gonzales versus Google, more on that one in just a moment. But there's no doubt, I'd say. You never say never, but it is almost certain that the Court will take those two cases or at least one of them and that that will be on the docket next term. Yes, Gonzales versus Google, subject of a recent episode of the show. The basic principles of freedom of speech and the press Justice Scalia once wrote for the Court do not vary when a new and different medium of communication appears at issue in Gonzales section 230 section 230 was enacted to honor that principle that I just read not to undermine it. With limited exception section 230 c1 protects any provider or user of a platform from large websites and apps to individual blogs and social media accounts from liability for disseminating speech created by others. The issue in the case is whether that protection applies as a platform recommends content. The petitioners have used the term targeted recommendations or algorithmic recommendations for what's that issue there. It's if you go on YouTube and you get the up next video that is presented to you to watch after the one you're watching. In truth though, the issue is whether there's any coherent way to distinguish recommendations from all the other editorial activity that section 230 clearly protects. Gonzales was argued before the court on February 21st between 303 creative the net choice cases and Gonzales versus Google. We have a mess. existential issues for speech free speech on the internet all being hashed out in a to use a cliche a game of 4d chess. Let's explore how these pieces fit together. This is the tech policy podcast. I am your host Corbin Barthold. For those of you who joined me on my recent first rank punditry episode about Gonzales versus Google, I previewed the argument. That was a few weeks ago. Thank you so much. I had so much fun. I thought I would try another one. I didn't plan to. I thought that Gonzales versus Google would be a one off, but life gets in the way. I had some stuff going on and then we have just had a perfect storm of scheduling conflicts and issues and snafu in terms of our guests. We have lots of exciting guests coming down the pipeline, but we have this gap here. I sort of took the plunge because Gonzales versus Google is such an important case. It seemed worth a special episode. At the very end of that episode, I touched on what we'll be talking about today. It is itself an incredibly important issue. Free speech on the internet hangs in the balance in these three cases. There's a lot of moving pieces. We should try to, I think I'm mixing my metaphors here. Am I picking it apart or fitting it together? We'll do one of them. I want to begin with the biggest issue here. The interaction between the internet and the first amendment. I mentioned Reno at the outset. That decision says that there is no basis for qualifying the level of first amendment scrutiny that should be applied online. I'll now reveal that that party up top that I mentioned, quoting Reno. That is 303 creative. The website designer that does not want to design a website for a gay wedding. This seems like a strong principle if you ask me. The internet should be an unfettered frontier for freedom. Yes, sure. Let's not have the government try to regulate what you can say or cannot say online with an extraordinarily broad boundaries. But our clown world timeline being what it is. The culture wars that we are suffering through. Both sides in this country, the left and the right. Different people within them. Little factions, I'd say. Would love to try to fiddle with this broad principle of freedom on the internet in just the right way to make things come out the way that they want and stick it to the other side. Each side has a super master genius plan for how to tweak it just so that they can stick it to the people they don't like and not have it blow up in their face. On the right, we have these state social media laws. The idea is to make private platforms carry content against their will that they don't want to carry the compel speech. On the left, we have government bodies trying to use public accommodations law to force the website designer to serve particular customers and create an expressive product for them that stands for principles that the website designer doesn't want to endorse. Each side has some principles that they want to invoke or I might say abuse in trying to get around Reno. Not to undo Reno mind you. Get around it for them, but not for the other guy. Let's explore some of those. Starting with one that actually, I believe is only the right states. I don't know if I've seen a mirror image on the left. All of the other ones will see both sides are doing the same thing. But we saw in the fifth circuit, which upheld this Texas law, HB20, it then got, well, I should say, it had previously gotten state by the Supreme Court in an emergency posture. So the law is not in effect now, but the fifth circuit, if they had their brothers, this law would currently be in effect. The main way that they got to allowing HB20 was by a twisted path of reasoning that got them to the conclusion that editorial discretion is not an independent right under the first amendment. So the websites, platforms, social media, they host speech. They decide what they'll allow and what they won't allow and what they'll put up in the news feed and what they want. These are editorial decisions. That is itself a part of the first amendment under our constitution. This is established in any number of cases. There's one called Hurley that upholds this principle for parades. We recently saw the principle upheld in a decision called Hallick. That was about public access cable. We've heard it used in the context of newspapers. That is sort of the original way that it was brought up, but it's actually all over the Supreme Court case law. And it neatly applies here. The 11th circuit figured out as much in ruling to block SB 7072. An aside note, HB20 is quite a radical law. It prohibits discrimination based on viewpoint, meaning you carry the historical documents. entry on the Holocaust, you have to carry the Holocaust denier, you carry the health campaign, encouraging people to get help if they have anorexia. Well, you have to then carry the social media influencer who wants to help people be anorexics and so on and so forth. Those of you listen to this show. Regularly have heard me say that one many times, but it bears repeating, it's a very extreme law. How did the Fifth Circuit decide that there's no editorial discretion there? They basically concluded that editorial discretion is not itself a freestanding category of constitutionally protected speech. I was just quoting right there, Net Choice quite accurately says, quote, "The majority of the Fifth Circuit there essentially limited this court's editorial discretion cases to their facts." And they have this devastating passage in their petition for cert where they string all the authorities together with the exact quotes. Speakers have a right quoting the Supreme Court to quote, "exercise editorial discretion over speech and speakers." Totally different case. Quote, "The editorial function itself is an aspect of speech." Different case. When an entity quote exercises editorial discretion in the selection and presentation of expression, it quote engages in speech activity. This is very clear if you dig into these cases that this is its own right and the Fifth Circuit just sort of bypassed all that on its mission to uphold HB20. Now, the Fifth Circuit's main move in this regard was to just sort of ignore all the case law I mentioned about editorial discretion. But they did offer a stab at an argument here. They said, "An entity that exercises editorial discretion accepts reputational and legal responsibility for the content it edits." And it argues that Section 230 strips such responsibility from platforms thus making their speech regular. Plenty more to say about the Section 230 angle later. But for now, I'm going to go ahead and just poke some holes in that reasoning there. The Fifth Circuit basically was saying that Congress can indeed strip an entity of its first amendment right to editorial discretion. So long as Congress also creates a legal regime under which you have no legal or reputational responsibility for the decision you make. And packaged within that argument is this just quicksotic and undefended belief that if Congress strengthens your ability to speak by removing potential legal or reputational consequences, that means it gets to weaken your right to free speech by telling you what to say. So the unstated assumption there is an effect that Congress can silence its favored entity or turn it into a state puppet by handing it this poison chalice. Here's Section 230, Faustian Bargain. But the argument stated premise. This thing that if you have no responsibility, you have no rights, that fair is no better. So in my mind, the one I think of is the speech and debate clause. That's in the Constitution. It provides that legislators have legal immunity for what they say on the House or the Senate floor. And no one would claim that because you enjoy that constitutional immunity for your words, you as a legislator are not speaking when you were on the House floor. When Charles Sumner denounced the Harlett slavery, he was speaking on the Senate floor. There's a reason that Preston Brooks beat the man within an inch of his life, right? He was not, you know, the lack of legal responsibility. It's a non-sequitur. As is the reputational one, by the way. So net choice versus moody, which is the name of the 11th Circuit decision from Judge Newsom. That's excellent that we've talked about on this show in the past. You know, said that the notion that speaking must come with some kind of reputational risk that simply isn't a prerequisite to first amendment protection. And he cited several of the Miami-Herald Turner broadcasts and several prominent Supreme Court cases to make this point. At any rate, last thing I'll say on this, the notion that platforms editorial decisions don't affect their reputations is kind of nuts, right? And we know this because the very people who decry big tech censorship, they prove that point. Thanks largely to the certain, you know, high profile content moderation decisions, like ejecting Donald Trump. Large social media platforms have a poor reputation among the certain users. So if the topic of big tech were not so politically charged, I think the connection between platforms that editorial decisions and their reputation, you know, it would be like too obvious to require discussion. And you know, you can look no further to the number, then to the number of advertisers that Twitter has lost since Elon Musk basically loosened their trust and safety measures. But it even goes back to and this weirdly, you know, connects to Gonzalez versus Google, but like Twitter cracked down on hosting ISIS content a number of years back precisely because they recognize that it would risk like ruining their reputation with their customers being filled with a bunch of terrorist content. So that route to getting around Reno is not going to cut it. And it's worth noting the Fifth Circuit decision never even sites Reno, which is the governing precedent in this area. So that one is relatively quickly dispatched, even though it is the gravest threat to free speech on the internet that argument. So what else do we see? And now I can start diving to things where we really, as I said, we see a mirror image between the two sides. There is the cynical use of the concept of market power. Each side wants to fiddle with a sort of market definition to say, look, the people that we want to regulate have all this power or are important. So it's okay for us to do it, but that other case, you know, we'll find a way around it. To begin with, market power doesn't actually diminish your free speech rights. You do not lose your first amendment rights just because you succeed in the market. And that's in several cases, but the most prominent one is Miami Herald versus Tornillo, where the Supreme Court said, look, the Miami Herald may basically be a newspaper monopoly in Miami. That does not mean the state of Florida can force it to publish replies to its articles. But even putting that aside, this is such a, I guess the way I put it, it's a placeholder argument or a just so argument. That's probably the way to put it. Judge Holden in the fifth circuit, basically broke down different social media products and said each of them has their own little monopoly. So if you're a journalist, well, you just have to use Twitter or if you're making instructional videos, you just have to use YouTube. And it was fascinating to see because if you're actually read in antitrust law, you know that in antitrust cases normally you get these deep analyses. They're very complicated cases with demand curves, you know, looking at elasticities. There's a huge amount of discovery. There's just tons of data analysis. And Judge Holden just said, yeah, yeah, well, this is clearly correct with like no support whatsoever, just declared it so, which is very, very hasty. I put it aside, the fact that Twitter got purchased by Elon Musk, right around. I believe right after this decision was issued, you know, changing the landscape, but quick digression is in order that the FTC is suing meta to break apart Facebook and Instagram. Now this is a full set piece antitrust lawsuit where it's the only issue in the case, unlike in the Fifth Circuit where they just sort of declare it in a paragraph. And the FTC has had a heck of a time defining a market that gets sort of a monopoly definition for Facebook. They say, oh, you know, it's this personal social networking that Facebook specializes in, not explaining why that's special or why it is still a market. I mean, sorry to say most of us just don't really use Facebook that much, but then most of all, the fact is Facebook is pivoting away from the approach of focusing sort of on your social, your personal network. They want to be more like TikTok. Why? Because the market is fluid because these networking effects are a bit overrated because a company like TikTok can come in and if they get the algorithm just right can become the hottest new thing with the kids. So there's so much more to social media markets than just declaring, oh, if you want to make instructional videos, you have to use YouTube, you know, ignoring the fact that a lot of people do very well for themselves just being on Snapchat, just being on TikTok. So that's pretty weak. And yet if we look over at the left, they want to use market power and their argument is somehow even weaker. You know, so you're a website designer. You're just, you're just some, nobody's heard of you, like maybe you have some customers that like you, but you're not a, you're not like a social media platform. You're not this. brand that is out there. You're just a bespoke website designer. And in order to force you to design websites that you don't want to design, the powers that be the state of Colorado and the 10th circuit have decided there's this like market of one where because you are an artist, you provide a unique product that nobody else provides. So you are in fact causing almost like an antitrust harm by refusing service, even though you're just one modest website designer. If anything that flips all the principles here on its head, the fact that what you do is maybe artistically unique is exactly why you should have robust first amendment rights. It is not a reason to take those away. So a lot of funny business with with market power. Okay, if you don't like that one, these both sides have they have more they have more. Okay, maybe there is a right editorial discretion. Maybe there aren't problems of market power here, but let's take the websites that we don't like and declare them to be common carriers or public accommodations. That's another arrow in the quiver for each side. I can't emphasize enough each side wants to use these different principles, but you know, only for themselves. In those state social media laws, there are attempts by the states to declare as sort of a legislative finding that social media websites are akin to common carriers. We here at tech freedom have done lots of work on why as a matter of history and this and that and the other that's not right. And I'm pleased to say, you know, we did get a shout out in the 11th Circuit opinion as I think I've mentioned on the show before. I don't want to focus on all that technical stuff. I will say, you know, as Judge Newsom for the 11th Circuit wrote, Supreme Court precedent strongly suggests that internet companies like social media platforms aren't common carriers. Judge Newsom in the 11th Circuit did a good analysis of the technical stuff. Today, I just want to focus on the fact that it's kind of a non-sequitur. Sure, you get a bit of common carrier stuff in the telecom industry. I've always been a bit uncomfortable with how it was applied there. But you have this mismatch between expression on the one hand and common carrier on the other. It's kind of a square pegging around holes. So for instance, Judge Oldham writing only for himself, the 5th Circuit didn't adopt his position. But writing only for himself in the 5th Circuit, he went through this long elaborate analysis about how robust this concept of common carriages, diving back into a lot of case law from the late 19th century and the early 20th trying to build this tool up that he then wants to use to beat the social media platforms with. And Judge Southwick in dissents, he just waved his hand and yet very effectively wrote, quote, "The view of the cases cited concern the intersection of common carrier obligations and First Amendment rights. And the ones that do reinforce the idea that common carriers retain their First Amendment protections of their own speech. It's kind of as simple as that. The fact that maybe there were robust requirements, I don't know, for railroads, just doesn't account for the First Amendment Interest Center play here. So I'm going to use this historical concept, show how it actually attached to expression. Now interestingly, I cannot put ideas or positions in people's mouths. I would imagine he's free to disagree with me that Judge Oldham would be sympathetic to the website in 303 creative, you know, the state trying to compel speech by this website designer. And then he said, "I think it's a very recent Supreme Court case with cake shop owner and everybody on the right was up in arms about making this, you know, baker baked cakes that had messages he didn't like." Well, over there, public accommodations laws being used is very similar to common carrier law. And 303 creative in their reply brief says something that I personally think is very effective, but that it runs squarely against what Judge Oldham writes in the 5th circuit. created pointing, although I don't think this was even necessary to their analysis, pointing to a the recent second amendment decision of the Supreme Court, New York State and Rifle and Pistol Association versus Bruin says, you know, there has to be a historical fit when we look at constitutional rights, which indeed is invoking the analysis from that Supreme Court case. But just sort of logically makes sense, right? They said, quote, it is not enough for Colorado to show that compelling access to non-expressive goods is historically well-founded. Colorado needs to show that public accommodation law historically compelled speech, not that they merely existed. And those sentences just pick them up and carry them over to the social media cases with HB20 and then just throw them right back at the conservatives who would think that a law like HB20 is a good idea. It applies equally. What a great example, in my opinion, you know, you pick up the grenade and it blows up in your own hand. How do we reconcile these cases is very important. How much are judges aware of, well, I love the idea of pinning public accommodation status or common carrier status on this entity I don't like. Oh, oops, look at the position it's put me in when my ox is getting gourd. I mean, granted, I'd like them to just apply principles neutrally and not even think in those terms, but if they're going to think in those terms, maybe they should be very wary of the way that these things can criss-cross through the different cases that are currently working their way through the system and are coming up to the Supreme Court or already there. Okay, so maybe that's a bad idea. Maybe we shouldn't use common carrier or public accommodation and oh, okay, there's a right editorial discretion and oh, market power is irrelevant. In the old Groucho Marx line, you don't like my principles. I have others. What if we say, okay, well, what we're trying to attack, it's not speech, it's really conduct and that's distinct. I am not going to get as far into this one because I talked about it actually a decent bit at the end of the Gonzalez versus Google episode I did, but again, you have judge-old him in the HP 20 decision saying, you know, I love this decision, Rumsfeld versus Fair, which said that law schools to continue getting funding, certain bucket of funding from the federal government had to allow military recruiters to conduct job interviews at law schools. And the main sort of principle of decision there is that the law schools were not being forced to speak. They were being forced to like provide a room where a one-on-one interview could occur. And there was some other stuff that was purely incidental to that conduct, like announcing where to go for the interview. And the fifth circuit picks that up and goes, well, this is fantastic. Okay, we'll make it just, this is just like the social media platforms, make the social media platforms host all this speech. As I've written elsewhere, to make that analogy work, it would have to be something more like forcing the law schools to let, you know, neo-nazis like patrol the hallways with bull horns and harass people and like disrupt lectures. That's, that's what would make this sort of a neat analogy. Job interviews between one military recruiter and one willing student in a private room and pointing to that room is very different. Nonetheless, look good to the fifth circuit. Well, guess what? That exact case also looks good to the solicitor general in the 303 creative case. The solicitor general of the Biden administration looks at that same case and goes fantastic. We can force this website designer to make websites that have messages that she has religious subjections to because it's just like rum several versus fair game set match. Well, both of these sides, I'm probably beating a dead horse now, but they're playing a dangerous game and they're risking, I don't care much by this, but a blowing up in their own face. They're also risking just sort of ruining it for everybody. You start with one of these principles and the next thing, you know, you're basically overruling Reno versus ACLU for everybody. So it's disappointing to see. It was interesting to see the SG, by the way, raise this argument or a argument and and Chief Justice Roberts was having none of it. He authored Rumsfeld versus fair and he was putting it exactly the way I just said. He said, that's about providing a room that's totally different. So he was not buying it. But at the 303 creative or argument, you know, you saw people sticking out positions that you wonder how consistent they're going to be down the road. So Justice Sotomayor took a hard line about, well, the website that is designed by this website designer is not that website designer's speech. It's not the business's speech was pretty clearly her position. And I guess maybe fair enough, is she going to take that heart of a line when it's Texas and HB20 saying that the editorial discretion exercise by social media platforms is not their speech. And so the state can force those websites to Harry, a hard right propaganda or whatever. I mean, maybe she will. Again, I cannot, I'm not trying to force positions into people's mouths, but it does seem like people on both sides are staking out positions that it'll be interesting to see what they do as the other cases come forward. Likewise, just as Thomas in three or three creative saw speech as thoroughly trouncing public accommodations rules. And is he gonna be consistent with that? When that choice comes up, it seems a bit disingenuous for him if he's gonna just say, well, that was public accommodations. And this is common carrier. That's totally different. Going back to the principle above of if there's no real historical basis for abusing either of those concepts in this way, it seems very artificial to try to pick up one but ditch the other. Side note. So now we can finally get back into section 230. This conduct versus speech concept is being abused in that realm as well. Julia Anguin had a New York Times article shortly before the Gonzalez argument. She said, I've got a great way to keep the internet open and freewheeling but bringing the social media platforms to heal. We draw a distinction between speech and conduct. She wrote, quote, in this scenario, companies could continue to have immunity for the defamation cases that Congress intended, but they would be liable for illegal conduct that their technology enables. We discussed on the last episode why that defamation limitation is misreading the history of section 230. Be that as it may. In her article, she's focused on housing discrimination laws and that looks really good to her. And I don't wanna gain say, I mean, it does. Racial discrimination is really bad. It's wrong. I should want to combat it. But in this particular context where there's a lot of moving pieces, please tell me your story about how you can combat that by curtailing section 230 or all the other principles we're talking about here without it blowing up in your face. So she says she wants to draw a distinction between speech and conduct and that it seems like a reasonable step toward forcing big, I'm hoarding now. Forcing big tech to do something when algorithms can be proved to be illegally violating and she lists civil rights, product safety, anti-terrorism and other important laws. Well, that should be easy to figure out. Just carve out those other important laws. My first thought about this was back during the George Floyd protests in 2020. Her principle applied neutrally would have led to a social media crackdown on people who were organizing those protests. I don't need to get into a debate with anybody about how much violence was occurred during this protest. If there was basically any at all, which there was, the social media platforms being somewhat risk-averse entities that they are under this principle would start taking down far more speech than necessary to make sure that they had covered their butts because there's all kinds of ways that creative plane of lawyers can come to sue. Once you take away that section 230 protection, one that I've often listed is public nuisance law. I actually got into a spat with this a law professor who was saying, well, public nuisance law has these really clear elements to it. So you don't have to worry about that. I have no idea what you're talking about. Have you ever litigated in the California courts? In the California court of appeal, I'm sorry to say public nuisance law means whatever the judges want it to mean. If they want to bend the principles because they really want to make paint companies clean up a lead paint that they lawfully sold decades ago, they will find a way to do it. And likewise, if they decide that they want to apply these principles to quote social media addiction for teens, California will get away with only so much of that before some red state goes, ah, to can play at that game and uses something akin to public nuisance law to allow suing social media companies for their pet cause. So if you're only focused on your thing, like your pet cause, in this case, housing discrimination, lamentable though that is, you're going to miss all the ways that your little principal can be abused. And so there we go again. So none of those arguments persuade me, as I'm sure you can tell, that we should be trying to undermine Reno versus ACLU. We shouldn't be trying to do it from the left. We shouldn't be trying to do it from the right. Seems like a bad idea. Hopefully the Supreme Court will see it that way. If those state social media law cases just go down in flames, a lot of this supposed sort of puzzle of how does this all fit together goes away. So that's sort of some of the interplay between the First Amendment and the internet. But of course, as I've already touched on slightly, but Section 230 is floating around there. So now let's get into the land where maybe the HP 20 or SB 7072 has legs or part of it survives. That's when we really get into these weird mind bending games of how the pieces fit together. Because even if the Supreme Court, and I don't think this is likely, but anything's possible where to say, okay, fine. Reno is bad law for whatever reason, or we want to narrow it or like the internet's completely changed since it was decided whatever. If they come up with a reason to narrow Reno and allow parts or all or whatever of HP 20 and SB 7072 to stand, there's still Section 230, which is a federal law. Under the supremacy clause, it should govern over, conflicting state laws. How do these things interact? Well, SB 7072 says that a social media platform may not apply or use post prioritization or shadow banning algorithms for content and material posted by or about a political candidate. Similarly, it says that you cannot shadow ban a journalistic enterprise, which is kind of defined into the statute as any like big website. Last episode, I mentioned how HB 20 says that you cannot quote a censor based on viewpoint, and it includes within that definition, debuasting, denying equal access or visibility, or otherwise discriminating against expression. Those of you who listen to the Gonzalez Google episode I did, know where I'm headed here. Those state laws right there require the platforms to do exactly what the petitioners in Gonzalez versus Google would like to make the platforms liable for doing, would like to repeal Section 230 for. So the petitioners supported by Texas I might add up before the Supreme Court want targeted recommendations to receive no Section 230 protection. Okay, so your YouTube and you recommend an ISIS video, you can be held liable for recommending that video. You still can't be held liable for it just being on your site, but you can be held liable for it being in the up next feed. But under the Texas and Florida law in various ways, clearly under the HB 20 under SB 7072, we might have to come up with different examples. But long story short, you have to put things in your up next feed on equal footing. So in the case of HB 20, if there is a video that denounces terrorism or just kind of talks about it in the news, yeah, chances are you've got to be recommending that ISIS video as well required under that law, which is not a bad segue into discussing the fact that harsh though I'll put it this way, but it's true. Texas is overall position in regard to Section 230 is all over the place. So bear with me here. The state of Texas actually invokes Section 230 for support for their must carry law. Many of you will recall that there's this fallacy called the platform versus publisher fallacy. I don't know if it originated with Ted Cruz, but that's who I associate it with in my mind. And it basically says, you're only protected by Section 230 if you act as a neutral platform. And then the moment that you start making bias decisions, I don't know how you measure that, there's nothing in the law that would tell you how to measure that. But as soon as you're biased as judged by like someone, I don't know, you lose your Section 230 protection because you become a publisher. That theory has no basis in the law. It's never gone anywhere. It is like a like a Fox News segment fever dream. And it is for good reason. It has gotten no traction in the courts. Texas and then followed by them, the fifth circuit kind of updated the theory and actually managed to stick it into the federal reporter as I guess you could argue it's Dicta in that choice versus Paxon, but it's there. It's adopted by Judge Oldham in the fifth circuit. And in this new version, websites are not offered like that. various choice between platform status or publisher status? Under this new theory, Section 230 flat out strips a host of third party content of its first amendment right to editorial discretion. So in this spin on this sort of platform publisher fallacy, Section 230 quote, this is the fifth circuit. Reflex Congress's factual determination that platforms are not publishers and that they are not speaking when they host other people's speech. It's latching on to the shall not be treated as a publisher language in Section 230 c1. And then what it's doing is it's conflating not treating a platform as a publisher for purposes of liability, with a platform's not being a publisher at all for purposes of the first amendment. And Judge Southwick in descent in the fifth circuit got this he understood. That's not how it works under Section 230 platforms that disseminate third party content, both exercise editorial discretion and enjoy protection from traditional publisher liability. Congress sought to bolster intermediaries first amendment rights, you know, not brush them aside and you dig into the legislative history or whatever you want to do. In the enactment history, you don't even need to get into like the legislative history for those of you, you know, are allergic to that. I mean, I'm a little bit too. It's very clear that the goal here was to preserve the first amendment on the internet to use the words of rep Zoe Loughgren. So the fact that a website is not liable for speaking when it disseminates other content does not mean that it is not speaking. And yet that is what the fifth circuit use Section 230 to say that like Congress had sort of made this wild conclusion. And you can tell that this is really pretty wackadoodle because, you know, in the fifth circuit, the fifth circuit just stated straight up under Section 230 platforms are not publishers. Texas's council at oral argument for the fifth circuit said quote, they don't have to face liability under Section 230. They're protected because they are not publishers. But by that logic, no one who enjoys Section 230 protection is a publisher. So bear in mind, Section 230 protects providers or users. Section 230 protects you when you retweet something. But by the logic of the fifth circuit, because of that fact, the government can tell you what you have to retweet because you are not speaking when you retweet. That is where the logic of the fifth circuit's decision leads us. And it uses Section 230 to get there. So there is Texas using Section 230 as a sort. But bear in mind, like Texas does not like Section 230. So then they get up to the Supreme Court in Gonzales and they try to narrow the thing down. They say, oh, you know, its protection shows that we can tell you what to say, including what you amplify. Oh, but it's narrower than that. It doesn't protect what you amplify from liability. So if you're YouTube, Texas and the fifth circuit say Section 230 is why we can force you to amplify things. Or it's one reason. But simultaneously, Section 230 is narrow enough that it doesn't actually protect what you amplify. Do with that what you will. So let's say that Section 230 gets narrowed and I'll turn back to the topic of preemption in a moment. But if Section 230 is narrow, that does help Texas in at least one way. It takes preemption off the table and at least in theory gives HP 20 room to run, room to apply without being preempted. Of course, we're assuming here that they get around the First Amendment problem, which is unlikely, but possible. That still gets tricky and weird, right? Because even if you apply HP 20, there's still the supremacy clause. So if you sue under a federal statute, let's say you sue under the Anti-Terrorism Act, which is the law that's at issue in Gonzalez and its companion case, Twitter versus Tom now, which I touched during the Google Gonzalez episode, you're going to have potentially in possibility preemption. I mean, if one party is saying I can impose liability on you under federal law and state law is trying to say, no, no, you have to carry that stuff. There's a very good chance you're actually going to still suffer preemption even in the absence of Section 230. And if it's not a federal law, if the plaintiff is suing under state law, you still may have a problem with the dormant commerce clause. I mean, Texas saying you have to carry something that then New York law says you're liable for carrying. That's going to create all kinds of problems in the courts. Kavya here that neither Florida nor Texas is going to be able to limit their laws to applying only within their states, apart from what the laws actually say, that's just not how the internet works. So you get that weird stuff, even if you narrow Section 230, at least in the case of Gonzalez versus Google and recommendations, I should point out the social media platforms put in this bind, you know, they would have a solution. They actually would have a way, let's remember, to both lose the Section 230 protection and comply with the state laws. Are you ready for this? I mean, think about this. It's important not to lose this thread. Just don't have any kind of news feeds or algorithmic recommendation or curation or organizing. Just turn it all off. Just stop curating the internet. Like that is one of the main services that these products provide. But if you just, I don't know, do the chronological fire hose of content, I think you're setting yourself up in a pretty good situation where you can't be held liable for affirmatively recommending the content, even under like the worst possible outcome in Gonzalez. And you're not discriminating under HP 20 or SB 772 because everybody gets the same crappy treatment. So it's worth just bearing in mind there that like that's the end game here where Texas to get what it wants on both sides of that issue of victory, like total victory for Texas is breaking the social media products. Just bear that one in mind. Quick side note to then be even handed once again about everybody shucking grenades around theme of my episode. Some on the left prominent voices even they are big on this notion that you know, the platform should be liable for their design choices. A similar flavor to that New York Times piece I was ripping on earlier of trying to separate out speech from sort of like everything platforms do, it just can't be done. But that is a very similar flavor. It's not as extreme as what I just said about Texas, but you know, that's it's the same thing. You know what we should do? We should put the screws to these platforms and basically make it so that they stop trying to provide quality curated products that show people what they want to see. Make them liable for their design choices such that it is in their interests not to design and push them toward something more like the fire hose where you know, their product will suck, but at least they'll be safe. That's all a bit hypothetical because the signs that begins all as oral argument point to the justices sticking to a conventional broad scope for section 230. And if section 230 broadly applies, it will broadly preempt. So you have this situation where Texas through HB 20 and I've been ignoring Florida a bit because the HB 20 is a little more extreme and easier to wrap your head around, but SB 72 as well. Each statute says you got to carry all this stuff. You have to provide it up on your website. You have to amplify it on equal terms with other stuff. And then section 230 says no, that's you can't incur liability under state law for content that originates with someone else. So section 230 preamps. All signs point to this sort of simple federal law will now take away what state law just tried to give. Thank you section 230. So what does Texas do in response? Well we heard during the fifth circuit oral argument, a preview of Texas's plan, which is interesting that they went up to the Supreme Court and filed an amicus brief in González talking about section 230 being a deliberate choice by Congress to treat internet platforms like telephone companies. But then we heard an oral argument in front of the fifth circuit that Texas actually thinks section 230 might be unconstitutional. They argued, loaded would be maybe the way to put it in passing, that section 230 provides a special protection for platforms that is not enjoyed by physical world newspapers or books or broadcasters. And that by singling out this one kind of entity is how they put it. Section 230 maybe just is unconstitutional. It is hard for me to unpack all the ways in which that is rich on their part. For one thing, Texas is itself making distinctions. HB20 covers the big social media platforms. And so they want to pick on specific entities why they should think that Section 230 is problematic for favoring certain entities is anyone's guess. But it gets even better when you think about it because Texas's proposed distinction where they would get rid of Section 230, that would favor powerful speech interests. That would favor newspapers, giant media companies, a lot of us are just old enough for me, but a lot of us are old enough to remember the pre-internet days where media was actually quite consolidated. And if you didn't have a route into the newspaper for your op-ed or to get on the radio or on TV, basically nobody was gonna hear what you had to say. Well, Texas is in effect arguing to get us closer back to that world in terms of getting Section 230 off the books and removing liability protection for platforms. And then finally, there's simply the fact, and I'm sure they have a way to rationalize that one of these arguments is sort of in the alternative, I don't know, but if their view is that Section 230 basically turns these entities into utilities, which is how they justify getting around the First Amendment, they cannot turn around and then say, well, Section 230 is actually this gravy train for those entities and makes them like newspapers but more costeted and better treated, and therefore should be struck down. They basically try to use Section 230 as a ladder to climb over the First Amendment and then try to kick it away and get rid of it after they have surmounted that obstacle. Anyway, so if this all sounds a bit difficult and confusing, it's probably because I've struggled to explain it, but it's also because it just is. The Supreme Court at some point, I mean, between this term and next term, will have this full plate in front of them. They will have pretty much all of these issues to chew over. We do not yet know to what degree the justices are looking ahead and thinking about how they plan to put all of these pieces together. I mentioned earlier that the solicitor general owes the Supreme Court a brief on the net choice cases, and I believe I also mentioned that I would expect I'll probably wait to see what the court does in Gonzalez versus Google. They are, I'm sure, grappling with these issues and thinking it through and need to make them all fit together. If I were to make a plea to them, it would be, just keep it simple. Make it clear that HP 20 and SB 7072 are unconstitutional because Reno and Reno's awesome. And then maybe just go home having said, well, Reno's awesome and editorial discretion is real. There you go. That's all you need. There's no need to get cute and trying to explain how well, but when the next law comes along and it's like a blue state and it's a little, you know, that law is in good faith. I'm like these bad faith ones. You know, then that might be cool. If there's one thing I hope I've made clear here, it's that people on either side of the culture war trying to get to cute risks, doing us all in and doing immense damage to internet freedom in a way that everyone on both sides may have reason to regret down the road. That is the parting message. From all this mess, all this tangled stuff that's sort of hard to pick apart. If I had to derive one message out of it, it's don't try to square the circle. Don't try to thread the needle in order to benefit your side. Just uphold the first amendment on the internet. So this has been another rank pun to treat podcast on my part. As I said at the end of the last one, I am just so privileged and so honored when you listen to these ones. I'm sure we'll have more to say on these issues. I'm sure we'll have episodes devoted to pieces of them as we actually get decisions from the Supreme Court. So stay tuned here for the most wonk tastic analysis around there of these issues. We'll have plenty more to say. This has been the Tech Policy Podcast. I am your host, Corbin Barthold. Until next time. The Tech Policy Podcast is produced and distributed by Tech Freedom, a nonpartisan non-profit think tank in Washington, DC. To learn more about our work, make a tech stuff double donation, or find other episodes, find us online at techfreedom.org.