What happens if the Court doesn't grant cert in Netchoice?

The call for views of the Solicitor General kicks the can down the road, but what happens if the road just ran out?

Programming Note: This is the fourth installment of The Klonickles, a weekly newsletter focused on online speech and law & technology plus a crazy Kate post-script (see below) which will be for paid subscribers only after Feb. 1. Thanks for reading and thanks double for pay subscribing. The more you do, the more I have the freedom to research and write.

A thought experiment worth having

[Note to readers: I promised on Twitter earlier this week that this week’s newsletter would be about the Meta Oversight Board decision on nudity and the history of the nipple in content moderation. Apologies, but that is now on for next week!]

To say it’s been a busy few months for First Amendment and online speech lawyers is an understatement. After almost 25 years¹ of the Supreme Court mostly² ignoring³ online speech platform issues, the Court unexpectedly granted cert in early October on two somewhat under the radar cases on algorithm liability and Section 230. Those cases, Taamneh v. Twitter and Gonzalez v. Google, sent academics, civil society, politicians, special interest groups, and tech companies into a flurry of amicus brief writing activity⁴ — at the exact same time as they had been busying themselves in the Netchoice cases (which I’ll get into in much more detail in a moment).

In brief: it has been crazy times in U.S. internet law and people are spread very thin. Especially the few people in the world who have the simultaneous First Amendment + Section 230 + platform knowledge to see all the complications of the issues. If you’re interested in following (a few!) of the (many!) people I rely on for smart takes, they are:

• Daphne Keller, at Stanford Cyber Policy Center who is maybe consistently the most brilliant and hard-working on-the-ground-in-litigation + in-the-clouds-with-theory legal mind on this. Early on she did a GREAT explainer of the implications and intersections of these cases with David Folkenflik for NPR’s On the Media. For those interested in the lawyerly weeds of these cases she maintains an insanely comprehensive tracking doc for Netchoice, and has put out really useful annotated versions of the Florida and Texas laws.

• Jeff Kosseff and Eric Goldman, who are arguably the world’s leading experts on Section 230. Eric has blogged and written articles for decades on litigation/theory around 230; while Jeff has written the literal book on the subject. Courts, policy-makers, and platforms all listen to them, so knowing their take is critical.

• Anupam Chander, Eugene Volokh, & Rebecca Tushnet are an ideologically diverse group of First Amendment, intellectual property, and internet law academics who teamed up to author this brief in Gonzalez, which I signed onto.

A Tale of Two Netchoice Cases

Now, let’s discuss the Netchoice cases, which are considered First Amendment cases, not 230 cases like Taamneh and Gonzalez. I will not get into anything more than the most basic basics of substantive First Amendment arguments here—if you want those I again recommend to you Daphne Keller’s comprehensive tracking doc for Netchoice, and annotated versions of the Florida and Texas law—but this is just the procedural history of the cases and their likely procedural future. The basics:

• There are two states who have passed social media laws: first Florida and then Texas.

  • The laws are similar but not identical, but the impetus for both state laws was political: to push back on the perceived censorship of conservative views by Big Tech corporations and online speech platforms.

  • The substantive differences for First Amendment purposes are:

    • Florida’s law (Senate Bill 7072; SB 7072) is more broad in the description of the types of internet services it describes; whereas Texas’s law (House Bill 20; HB 20) attempts to be more narrowly targeted at social media.

    • They have slightly different framing of the must carry and transparency provisions.

• There are two cases that were brought in both states challenging those laws.

  • Those two cases were both brought by two trade groups, NetChoice and the Computer & Communications Industry Association. But the named plaintiff for both cases is Netchoice v. _______

    • Netchoice v. Moody (the Attorney General of Florida) is the case challenging the Florida law. The First Amendment issues in the Florida case are:

      • Whether SB7072 transparency requirements compels covered online businesses to host content they would otherwise not allow and limit online business’ judgments about display of content.

      • Whether SB7072 restrictions, which exempt book publishers and theme park owners/operators, and imposes arbitrary numeric qualifications, are unconstitutionally speaker based and content-based distinctions and “irrational” discriminatory treatment.

    • Netchoice v. Paxton (the Attorney General of Texas) is the case challenging the Texas law. The First Amendment issues in the Texas case are:

      • Whether HB 20's must carry provision completely denies platforms their right of editorial discretion over what appears on their websites.

      • Whether H.B. 20’s transparency requirements constitute compelled speech from platforms by forcing them to disclose non-public, competitive sensitive information” and such “operational requirements are so costly and unworkable that they further burden the platforms' exercise of editorial judgment.”

Procedural Timeline of Both Netchoice Cases

Italicized dates relate to Florida, bolded dates are Texas, plain text is both.

2021

• May 24, 2021: Florida social media law (SB 7072) restricting social media platforms’ and internet services’ ability to moderate content signed into law.

• June 30, 2021: In Netchoice v. Moody, the Northern Florida federal district court grants preliminary injunction to prevent SB 7072 from going into effect as likely unconstitutional under the First Amendment. Decision is appealed to the 11th Circuit.

• Sept. 9, 2021: Texas enacts its own social media law (HB 20) which defines social media platform more narrowly than Florida, but like the Florida law imposes restrictions on content moderation and “censoring” users or content, as well as disclose information about their content/data management practices in transparency reports.

• Dec. 1, 2021: In NetChoice v. Paxton, the Western Texas District Court grants preliminary injunction to prevent HB 20 from going into effect as likely unconstitutional under the First Amendment. Decision is appealed to the 5th Circuit.

2022

• May 11, 2022: 5th Circuit (federal appellate court covering Texas) enters a stay on the Western Texas District Court’s preliminary injunction, allowing HB 20 to go into effect, but do NOT issue an opinion yet. The decision as to the 5th Circuit’s stay is appealed in an emergency motion to the Supreme Court of the United States.

• May 19, 2022: Deadline for Amicus to the Supreme Court on the emergency motion on the 5th Circuit stay. List of the briefs here (h/t Dennis Crouch)

• May 23, 2022: 11th Circuit (federal appellate court covering Florida) mostly⁵ affirms the Florida district court decision.

• May 31, 2022: Supreme Court vacates the 5th Circuit’s stay in Netchoice v. Paxton (J. Alito dissenting), which puts the Western Texas District Court’s preliminary injunction back into action, and once again blocking HB 20 from going into effect.

• Sept. 16, 2022: In a 2-1 decision from the panel in Netchoice v. Paxton, the 5th Circuit issues an opinion rejecting the First Amendment challenge to HB 20, vacating the the lower court’s preliminary injunction, and remanding for further proceedings consistent with this opinion.

• Sept 21, 2022: Petition for writ of certiorari Netchoice v. Moody to the Supreme Court by Florida Attorney General Ashley Moody appealing 11th Circuit ruling.

• Dec. 15, 2022: Petition for writ of certiorari filed in Netchoice v. Paxton to the Supreme Court by Netchoice appealing the 5th Circuit ruling.

2023

• Jan. 23, 2023: Supreme Court calls for views from the Solicitor General (what is referred to as a CVSG) on both Netchoice cases.

______

A few thoughts on this timeline: There is not much time left in this Supreme Court term. It will take until at least May for the Solicitor General to give views on the cases. The cases are pretty complex and as previously mentioned, the Court already has a pretty significant (and insanely briefed! the total words in just the Gonzalez amicus briefs is over 500,000 words! ) internet law case on its docket this term.

I would say there is a less than 10% chance either Netchoice gets cert in this SCOTUS term.

But before the Court kicked the can down the road this Monday with the CVSG, I was texting over the weekend about the Court’s narrowing timeline with my friend and colleague, James Grimmelmann. “Maybe they’ll deny cert!” I said to him. To which he intelligently replied:

This sent me down my own private rabbit hole for a few hours:

What exactly would happen in the unlikely case that the Court denies cert in Netchoice v. Paxton?

The answer is mostly what James predicted, but with a few interesting notes. Here is my best guess:

The Fifth Circuit’s Sept. 16, 2022 opinion and order would go into effect, vacating the district court’s preliminary injunction (which is different from the vacateur of the 5th Circuit’s stay that by the Supreme Court!) and instructing the district court to proceed “consistent with this opinion.” That opinion, which rejected all the First Amendment arguments against HB 20, seemingly would wipe out the bulk of Netchoice’s case and hand victory to Ken Paxton and the State of Texas.⁶

But it’s important to note where the case was procedurally when the district court authored the preliminary injunction that started it all: the preliminary injunction on HB 20 going into effect was also a denial of Paxton’s motion to dismiss.

So, presumably, the case would pick up where it left off in the docket: having just survived the pleadings stage. It would move to discovery and findings of fact and then there would be motions for summary judgment. As mentioned, the incredibly strong wording of the 5th Circuit doesn’t leave much wiggle room for a trial court judge, so let’s assume Judge Robert Pitman feels his hands are tied and issues summary judgment for Texas. Or maybe he decides to be a maverick, that the facts differ substantially from the 5th Circuit’s concerns and he grants judgment for Netchoice.

Either way, because the standard of review on a motion to dismiss is different that a motion for summary judgment, and because there had been no finding of facts at the trial level before the 5th Circuit opined sua sponte in a 90 (!!!) page opinion that was only legally relevant to the district court’s grant of pre-enforcement judicial relief — after summary judgment, the case would be eligible for appeal again to the 5th Circuit.

Fed courts expert, Texas resident, and fancy law professor on television, Steve Vladeck informs me that if this were to happen, the norm would be to assign a random panel, but the original panel could retain jurisdiction. And then we’re off to the races again.

Of course, I must emphasize again that there is a live Circuit split on this issue already, making SCOTUS denying cert highly unlikely. But if denial of cert was to happen, during all that discovery and summary judgment motions I just described above, HB 20 would presumably be in effect and wreaking having on Texas internet and speech platforms. Who knows what its enforcement would even look like! I’ve heard some companies suggest they’d simply geo-fence around Texas and stop operating there and others have said they’d just stop doing content moderation all together in Texas, which would lead to a huge rise in spam, fraud, and pornography on social media sites. I asked DALL-E to tell me what Texas would look like without internet and social media, and the answer was apparently a dusty, hot Russia (that text looks weirdly Cyrillic to me)?

Which reminds me of something someone said a few months ago on a conference panel. The speaker had been in house counsel for a bunch of different social media companies and the panel was broadly discussing the dangers of various European and U.S. state laws and the role of litigation and compliance attorneys in fighting them or softening their blow. The speaker made a provocative suggestion that I will try to roughly paraphrase:

You know how sometimes you can tell a kid over and over again that something is hot and not to touch it, but sometimes you just have to let them burn themselves to understand? Maybe we should do that with the places passing these terrible laws. Maybe we should stop protecting these places from feeling the full effects of the bad laws they pass. Maybe we should let them have it and see what happens.

There was, as you can imagine, some sympathy for this argument and some vociferous disagreement. It’s one thing to let a kid touch a candle flame, it’s another thing entirely to let them walk into a bonfire. But maybe a law like this going into effect in just Texas (and still up for review through ongoing litigation) is more like a candle and less like a bonfire. After all, we are seemingly in a grand renaissance era of F—k Around and Find Out, when it comes to social media platforms. If Elon can buy and destroy Twitter, why can’t Texas pass laws that fill its social media platforms with spam and pornography?

None of it’s likely to happen, but it’s interesting to think about.

KKPS

The Kate Klonick Post Script is more general musings, pictures of my dog, and other things I collect around the internet. It’s meant to be fun, personal, whimsical, smart. Starting in February, it will be paid subscriber only! Please consider upgrading!

My Grams

Some of you might remember in my first Substack that I mentioned a little frog stuffed animal I was crocheting to send to my grandmother in the nursing home. I finished it a few days later, with a two-page letter, and mailed it to her.

It ended up being my last interaction with her. She passed away quickly and painlessly last Tuesday, January 17, at the age of 94, and even though I know she had a rich and long life, I could not miss her more. My grams (as I called her) was the person who taught me how to start seedlings for a garden, plant potatoes, can tomatoes, and bake bread. She taught me how to sew by hand and on a machine, make my own patterns, crochet, and knit. She taught me how to use a jigsaw, a bandsaw, a lathe, and a table saw. She taught me how to paint watercolor, shoot a .22, refinish old wood furniture, and make chicken and dumplings. She had only a high school education, but was fearless in learning new things and always kind and generous to others.

In a Mark Twain like tale, in order to get my little brother and me out of the house and underfoot, she once handed us two old coffee cans filled with water and house painting brushes and told us to “paint the fence.” We “painted” that fence for two hours without complaint, and she came out and praised our work when we finished.

Sometimes she was impatient. And sometimes we disagreed on politics. But we loved each other fiercely and said so often. I was her favorite granddaughter, you see, the joke being I was her only granddaughter. The year I clerked in the 2d Circuit, I got to spend a whole year of weekends with her, sitting on her couch, knitting and chatting and watching golf — something I’ll always be grateful for.

Mostly, in times when I felt my parents sometimes didn’t understand me, I always felt my grams did. She loved me and she liked me. She understood my constant side projects and creativity always said yes to helping me with them and encouraging them. She was proud of my professional accomplishments of course, but she couldn’t (and didn’t really desire to) understand the fancy degrees, or fellowships. She was simple, and never put on airs, which meant she always loved and was proud of the person I was.

Grams and I making a bookcase out of old barn wood (2015)

The day after she passed, my mom sent an email to the family with a scanned image. It was a note my Grams had written to her children and grandchildren, to be opened upon her death. I have read it now many, many times, and I can’t think what more I could possibly want to have on the days I miss picking up the phone and calling her:

“I want you to know that you are all the greatest blessings in my life,” she wrote. “You have all given me such joy in my life. . . and I’m so proud of all of you. . . I have had a wonderful life. . . Whenever you feel sad, remember all the wonderful times we had together and I pray you find solace.”

Comfort Nena Pic

From back when it used to snow in New York City.

Things I Can’t Stop Watching

This moose shedding its antlers caught on film by a drone.

The soothing and charming David Suchet as the quintessential Hercule Poirot on Amazon Prime.

This video on how to make your own monotub, because of course my newest project is growing my own oyster mushrooms.

Things I’m Reading

James Speta’s really great Boden Lecture at Marquette Law, which touches a lot on Netchoice issues and some on antitrust, and which I mostly entirely agree with.

The success and future of the Billion Oyster Project in New York Harbor.

The continued excellent parade of Balkinization 20th Anniversary Posts!

Poll!

I have been thinking about starting a podcast with a dear friend who is a media lawyer and generally brilliant human. It would be called: “In My Day,” or alternatively, “Back in the Day” or alternatively “In the Olden Days” (we’re workshopping) but the premise would be a bi-weekly/monthly podcast discussing and interviewing experts on internet law and technology from the 1980s-2010s.

1. Reno v. ACLU (1997).

2. See kinda Packingham v. North Carolina (2017).

3. Except for Justice Thomas! Who wrote an epically strange and borderline questionably appropriate concurrence from a denial of cert last year in the Biden v. Knight First Amendment Institute, basically telling litigants the type of internet law cases he wanted to hear.

4. Michael Kwun has put together an amazing summary of all the amicus briefs filed in Gonzalez. What a guy!

5. Again, I won’t get into details. But I will note that both Texas and Florida laws have transparency provisions — and the 11th Circuit upholds that here which might have persuasive effect on the Court if they ever do reach the merits.

6. Another option, I suppose, is Netchoice switch tactics and really goes for the Section 230 and dormant commerce clause issues they have preserved and seeks preliminary injunction again that way, but honestly I only can let this newsletter go on so long, so let’s set that aside for now.