Thread by @jess_miers

Just finished listening to the Murthy oral arguments.

The Court appears poised to decide for the Biden Admin on standing grounds, based on lack of traceability and the absence of any threat of future imminent harm.

Transcript / Audio: supremecourt.gov/oral_arguments…

Notably Justice Kagan's reference to platforms as "speech compilers" and recognition of Facebook's policy enforcement as reflective of its viewpoints perhaps foreshadows the Court's direction in the soon-to-decided NetChoice & CCIA cases...

I thought it was also interesting that the Justices (except Alito and maybe Thomas) weren't sold on this being a unique media issue, emphasizing that the same sort of persuasion tactics are employed by government against the traditional media counterparts all the time.

(FWIW, that too indicated to me that the Court is thinking about the publisher dynamics that online services and traditional media have in common when it comes to 1A).

Regarding traceability, the Court seemed persuaded that the State failed to demonstrate a clear link between the platforms' moderation decisions and any specific instance of government coercion.

Ditto re: future threat of imminent harm to the respondents.

I thought Gorsuch's point about there being an "epidemic" of speech TROs was a sound one.

He reiterated to Respondents that TROs must be narrowly tailored and relevant to a specific harm alleged by the "clients" in the matter.

The Court also questioned the feasibility and broader implications of enforcing the States' requested restraint for routine interactions between the government and media.

Justices Sotomayor and Kagan also suggested the State brief was legally and factually misleading.

The Court also seemed to grasp the distinction between "coercion" and "strong advocacy," noting that not all government communications constitute censorship esp. when the platforms ultimately maintain editorial control (cited examples where platforms rejected govt requests).

Justices Thomas and Alito expressed concerns about the potential for govt censorship through "intense" government communications.

Justice Alito also asked about market concentration and whether it should factor into the overall threat calculus.

Several Justices flagged concerns about the expansive reach of CA5 injunction and its potential to stifle govt and platforms, especially regarding matters of public concern.

The Biden Admin referenced our brief w/@NetChoice et al to underscore this point: drive.google.com/file/d/1dmthVz…

The hypocrisy of the States' arguments was also not lost on the Court: red states advocate against government involvement in content moderation while simultaneously demanding regulations to ensure child safety on platforms.

Indeed, Justice Jackson raised a concern that government authorities would be prohibited from warning the public about dangerous online trends for kids under the State’s broad perspective.

(the jumping out windows hypos...)

Overall -- nothing in today's arguments was particularly surprising to me. Most interesting were the points that could be traced to the NetChoice & CCIA cases (as mentioned).

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