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Jess Miers 🦝 Profile picture
Mar 19 14 tweets 3 min read Read on X
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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More from @jess_miers

Mar 19
[Lack of] @CommonSense published an explainer on AB 3172 (which adds statutory damages for online harms to kids).

The explainer is laughable and deserves to be publicly mocked for championing the erosion of Californians' speech and privacy rights. 🧵

commonsensemedia.org/sites/default/…
CSM argues that AB 3172 is "only" a statutory damages bill.

But they accidentally said the quiet part out loud: the goal is effectively a prior restraint, forcing online publishers to restrain their protected editorial decisions, if those decisions could "harm" a younger user.
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In other words, by levying millions of dollars worth of damages for editorial decisions that could be considered harmful to a child, AB 3172 effectively chills private speech.

That's what it means to "be more careful" when we're talking about private publishers. Image
Read 21 tweets
Feb 27
Ventured into the lion's den to oppose the Senate ELVIS Act today, standing alone against RIAA and their cronies.

Despite the bill's passage, we secured a small win: the Senate stated for the record the law exempts AI services from liability for 3rd-party misuse.

Testimony 🧵
Good afternoon, esteemed chairs.

My name is Jess Miers and I serve as Senior Counsel for Chamber of Progress, where we champion technological innovation to benefit all Americans, including the vibrant community here in Nashville, the heart of our nation’s music industry.
We stand before you to express our deep concerns regarding Senate Bill 2096.
Read 18 tweets
Feb 26
Okay now that I've had some time to process, here is where I'm at after today's oral arguments...

I can see this being a 9-0 decision to affirm the preliminary injunctions. The line of questions and discussions from the Court were strikingly similar to Taamneh / Gonzalez.
While the Justices wrestled with some of the particulars of the Texas and Florida laws as they apply to the different types of services offered by the major platforms, one theme emerged throughout:
these regulations, rife with content, speaker, and viewpoint discrimination, are fundamentally at odds with constitutional principles.
Read 8 tweets
Feb 26
We are now at the NetChoice v. Paxton oral arguments. I am starting a new thread for live tweeting here.
NetChoice is up first arguing that Texas cannot just convert social media companies into common carriers just because they so.
First discussion is about whether the social media companies can just leave Texas. Keep in mind though that Texas prohibits even this counter move. So, NetChoice explains that the social media companies would have to effectively remove content instead.
Read 60 tweets
Feb 14
Yesterday, the District Court of Ohio granted @NetChoice's request for a preliminary injunction, enjoining Ohio's parental consent law.

This is the 4th order in the NetChoice cases declaring social media parental consent laws likely unconstitutional. 🧵netchoice.org/wp-content/upl…
Recall: NetChoice won a temporary restraining order (TRO) against the state last month due to the act's looming effective date. You can read my discussion of the TRO below.

Yesterday's order echoes the TRO, yet it also unveils some critical new findings. threadreaderapp.com/thread/1744844…
1. Social Media Consent Laws are Inherently Speech Laws.

The State argued the Act regulates commercial activity (i.e contracts), not speech.

The Court disagreed finding that the Act prohibits platforms and minors from distributing and receiving speech. New cite to Ashcroft.
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Read 16 tweets
Jan 29
AG Bonta is currently appealing a challenge against the Age Appropriate Design Code after the District Court enjoined it, holding that @NetChoice is more than likely to show it's unconstitutional.

Now California is poised to do it all over again, all at our expense.
Worse, it appears in this new effort, the same folks behind the AADC are planning to launch a Utah-styled approach to regulating teen access to information.

Recall that the Utah laws, which are arguably even more obviously unconstitutional, are also facing legal challenges.
So, instead of waiting for the AADC and the Utah litigation to resolve, the California Legislature is rushing into another unconstitutional proposal that will inevitably face the same legal challenge.
Read 5 tweets

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