A DOFF OF THE CAP to Berin Szóka, leader and doyen of TechFreedom. Before SB7072, Florida’s effort to regulate speech on social media, was even officially a bill, Berin spotted that it was going to be a big deal. He and I quickly published a thorough critique in Lawfare, “No, Florida Can’t Regulate Online Speech.” That was in March 2021—still two months before SB7072 was enacted into law. When, later that year, Texas joined in the shenanigans, enacting HB20, a social media speech code of its own, we promptly picked apart that law, too. Both laws are First Amendment trainwrecks—as we’ve been saying over and over and over ever since.
So naturally I had a lot to say before, while, and after SB7072 and HB20 faced oral argument at the Supreme Court last week. The cases, FYI, are Moody v. NetChoice (SB7072) and NetChoice v. Paxton (HB20). Steel yourself: it’s time for a TMI recap of what I’ve been up to.
Week of February 19. Pre-argument (Lafayette, CA):
Florida and Texas are trying to force large social media platforms to host and spread speech against their will. The states argue that they can do this, the First Amendment notwithstanding, because the platforms’ choices about what speech to host and spread aren’t expressive. That’s pretty nuts, if you think about it for half a second. But what’s especially funny is that the behavior of Elon Musk, the right’s favorite “free speech absolutist” (har har), has blown this argument apart. He clearly believes that X’s editorial choices affect X’s reputation. To warm up for the hearing, I wrote a piece for Techdirt explaining why Musk is, ironically enough, Florida’s and Texas’s worst enemy in the NetChoice cases.
Here’s another weird argument that Florida and Texas throw around. They claim that judges can use common carrier doctrine—part of the common law—to narrow social media platforms’ First Amendment rights. That too is nuts, if you think about it for half a second. Why should unelected judges be able to extend a common-law concept in a way that narrows the scope of the Constitution? Still limbering up, I expanded on this point here on my Substack.
Week of February 26. Argument time! (Washington, D.C.):
On Sunday, I flew to our nation’s capital. Watched the first half of Oppenheimer on the flight. Lots of extraneous nudity. Awkward having that on the screen, on a plane. But as everyone knows, the internet isn’t real, so this isn’t awkward at all:
On Monday morning, I live-tweeted the oral argument from my hotel room. (I had clothes on and everything.) If you want a snarky and slightly exasperated take on all that went down, look no further. Early on, I gave my expert opinion™ on the posture of the cases:
Whoops. Sorry, everyone. I jinxed us. This wound up being a central issue at the argument. (As we’ll see, though, I don’t think it will be the decisive one.)
After speaking at American University (no video😕), I headed back to my hotel room, on Monday night, and cranked out an article for The Daily Beast. My thesis was that Brett Kavanaugh, with his good old-fashioned constitutional convictions (only the state can violate the First Amendment, only the state can “censor”), was the hero of the hour. Check out the big brain on Brett! It was late. I had the TV on. I was having fun:
Even though (or because) I dashed the thing off, the piece was something of a hit in the little world of tech-law wonkery. It made the rounds, drawing praise and criticism. On the criticism side, one of the hosts of the Moderated Content podcast said that she wants to “resist” the “framing” of the “camp” that “reads the First Amendment,” sees the words “Congress shall make no law,” and concludes that the NetChoice cases are straightforward (“why are we even here?”). That’s a “formalistic” approach, she complained, and not “nuanced.” Yes, well, forgive me for, you know, reading the First Amendment and noticing that it constrains only the government. Fancy-pants law profs will complain that today’s Court is too “political,” and then they’ll complain that you refuse to ignore the Constitution’s text and endorse making stuff up. ¯\_(ツ)_/¯
On Wednesday morning, I talked about the argument on a panel at the Cato Institute. What a production! The spaceship stage (pictured top). The crazy high-def video (pictured bottom). It was a great event. Watch the whole thing here.
On Thursday evening, I flew home. I sprang for the $8 internet so I could keep doing research on how the hell the justices went so sideways with the facial challenge stuff. Also watched the second half of Oppenheimer. Amazing film. Truman steals the show by calling Oppenheimer a crybaby.
March 1 onward. Post-argument (Lafayette, CA):
My daughter was simply delighted when Daddy came home. She drew me this:
She says the bit on the right is a dog. Gonna make bank at Art Basel Miami Beach.
Yesterday, I was the guest on Liz Dye’s (great, new) Law and Chaos podcast. We talked about SB7072’s and HB20’s biggest flaws, the First Amendment’s proper scope (government behavior! Liz agrees. Huzzah for principled liberals), the Kavanaugh-as-hero thing, why MAGA’s take on Section 230 is not how any of this works, Neil Gorsuch’s immense self-love (pet theory of mine), and much more. Want my prediction about how the Court will rule? Tune in!
Also yesterday, I put out an Ex-Twitter thread explaining why all that talk about facial challenges was just an epic distraction. There are three easy ways out of the supposed problem. In brief: (1) the facial-challenge bar, at least for speech regulations, is not as high as the justices made it out to be, (2) there’s likely a yet more lenient rule for laws that discriminate among speakers (as SB7072 and HB20 obviously do), and (3) the problem, if any, is limited to SB7072, and should be resolved against Florida, since it stems from how the state framed its appeal. I won’t dive further into the weeds here. But do check out the thread, if you’re interested in this issue.
Phew!
Me showing the trajectory of Ron DeSantis’s culture-war presidential campaign.