NetChoice, LLC v. Paxton (22-555)

argument 22-555

NetChoice, LLC v. Paxton

Supreme Court of the United States 1h 20m 8 speakers 8 chapters transcribed 7 days ago official recording ↗

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What is the central issue the Court is hearing in NetChoice v. Paxton?

John G. Roberts 0:00

We will hear argument next in case twenty two five five net choice

Donald B. Verrilli Jr. 0:04

versus Paxton. Mr. Clement. Mr. Chief Justice, and may it please the court. I don't want to proceed as if I wasn't here for the first argument. So let me focus on what's different about Texas. One thing, fortunately, that's different that's different about Texas is its definition of social media platforms excludes websites. So we can just put that Gmail issue to one side for when we're talking about Texas. The other thing it excludes, of course, is websites that are primarily focused on new sports and entertainment. In the First Amend Amendment business, we call that content-based discrimination. And that's just one of the many reasons that this statute is, dare I say it, facially unconstitutional. Yeah.

Donald B. Verrilli Jr. 0:45

The other thing that's different is in some respects this statute operates more simply because it forbids my clients from engaging in viewpoint discrimination. Now, we're used to thinking that viewpoint discrimination is a bad thing and that governments shouldn't do it, and of course, when governments do it. It is a bad thing. But when editors or speakers 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 if you have materials that are involved in suicide prevention, you also have to have materials that advocate suicide promotion. Or if you have materials

Donald B. Verrilli Jr. 1:26

On your site that are pro-Semitic, then you have to let on materials onto your site that are anti-Semitic. And that is a formula for making these websites uh very unpopular to both users and advertisers. So it is absolutely vital. The other thing that makes Texas a little different is at least in passing the law, uh, Texas was even more explicit in relying on the common carrier analogy, as it's simply labeling Websites common carriers makes the First Amendment problems go away. And that is fundamentally wrong for two basic reasons. One, these companies don't operate actually as common carriers. They all have terms of use that exclude varying degrees of content. And second, Texas can't simply convert them into public common carriers by its say so.

Donald B. Verrilli Jr. 2:12

I welcome the Court's questions.

John G. Roberts 2:14

Uh Mr. Clement, if these laws go into effect, uh what how would your clients uh what steps would they take to comply? So I mean you know one thing that they would include addressing the situation of compliance in Texas and Florida as opposed to nationwide.

Donald B. Verrilli Jr. 2:34

Sure. So I mean, you know, one of the things that they would contemplate, at least, you know, with respect to Texas in the first instance, is there's some way to just withdraw from the market in uh Texas and Florida. And of course, Texas had that in mind in the statute and specifically said uh by we we essentially have to do business in Texas and we can't discriminate against users based on their geographic location in Texas. So if we lose this, including the you know the idea of the U.S. idea that we can be forced to engage in expressive activity in Texas, then I think we would fundamentally have to change the way that we provide our service in order to engage in view in order to provide anything like the service that we want to while not engaging in viewpoint discrimination, we'd basically have to eliminate certain areas of speech entirely.

Donald B. Verrilli Jr. 3:21

So we just couldn't talk about suicide. Prevention anymore because we're not going to s talk about suicide promotion. I guess we couldn't have pro-Semitic speech because we're not going to have anti-Semitic speech. So we'd have to figure out some way to try to engage in even more uh content moderation or editorial discretion to try to get us to a level uh where we're more benign and somehow we we don't run afoul of Texas's law. And then on the disclosure provisions. The record here reflects that that you know YouTube would have to basically uh increase its disclosure and appeal process basically a hundredfold in order to comply with Texas law.