N.Y. AG Litigator Sees Potential Victory for States in NetChoice Cases

A U.S. Supreme Court decision recognizing the need for social media regulation -- despite First Amendment and Section 230 protections -- would be a “big victory” for Florida and Texas, New York Deputy Solicitor General Ester Murdukhayeva said Thursday.

Monday’s arguments in cases challenging Texas and Florida social media laws (see 2402260051) showed a bipartisan majority on the court believes “some regulation” is permissible, Murdukhayeva said during an FCBA webinar. Many of the justices hearing NetChoice v. Paxton (22-555) and Moody v. NetChoice (22-277) recognized the “frustration” with platforms using Communications Decency Act Section 230 and the First Amendment as shields from “any sort of meaningful government regulation,” she said. Though the laws in Florida and Texas are likely to be struck down, the court will try to establish a standard that will keep the door open for regulation, she said. One area of bipartisan agreement from state attorneys general, she said, is the need for regulations protecting children from harmful online content.

Expect a narrow Supreme Court ruling, much like the decisions in Gonzalez and Taamneh (see 2305180035), said Blake Reid, associate law professor at Colorado University. The court in those cases declined to address the application of Section 230 (see 2305180035). Reid expects the justices to follow the advice of U.S. Solicitor General Elizabeth Prelogar, who told the court Monday it should strike the laws in Florida and Texas and leave nuanced policy questions for lower courts. When Prelogar made that suggestion, it was the only time during the four-hour oral argument that there was “some sort of calm among the justices” about the path forward, said Reid.

Nuanced questions for the lower courts could involve the degree to which social media platforms are considered neutral conduits of information, like common carriers, or publishers of speech, like newspapers, he said. Reid said several justices -- including Chief Justice John Roberts and Justices Neil Gorsuch, Samuel Alito and Amy Coney Barrett -- seemed to draw a line that platforms are more like common carriers when delivering direct messages or emails. Newspapers are one side of the spectrum, common carriers are on the opposite side, and social media platforms are somewhere between, said Reid: The court majority seemed convinced that messaging and email platforms don’t enjoy the same level of First Amendment protection as a public-facing social media platform.

The votes exist to strike down both laws, Clay Calvert, American Enterprise Institute fellow, wrote in a blog post Thursday. Comments and questions from Roberts and Justices Brett Kavanaugh, Elena Kagan and Sonia Sotomayor suggest they will side with NetChoice, he said, and it’s likely Barrett, Ketanji Brown Jackson or Neil Gorsuch will go along. Like Reid, Calvert said he expects a narrow ruling from the high court.

A sweeping ruling would ignore the many nuances of various entities that provide internet services, from platforms to common carriers, said Reid. But if the ruling is too narrow, it could allow “yo-yo” AGs to regulate speech however they want. The question, he said, is how the court will split the decision between two extremes. A decision is expected in June, said Calvert.