NetChoice Censorship Defenders Misstate Section 230 at SCOTUS

February 26th, 2024 7:04 PM

NetChoice Attorney Paul Clement and U.S. Solicitor General Elizabeth Prelogar both made stunning admissions during oral arguments for landmark free speech cases. 

On Feb. 26, the U.S. Supreme Court heard two landmark cases — Moody v. NetChoice and NetChoice v. Paxton — challenging Texas and Florida’s state laws protecting free speech. The new laws would limit Big Tech’s ability to censor users based on viewpoint discrimination, as a publisher might. However, the protections provided by Section 230 of the Communications Decency Act would continue to apply. But Big Tech wants to have its cake and eat it too. While arguing on behalf of Big Tech, Solicitor General Prelogar made the admission that social media companies are "literally, factually publishers." This admission was echoed by Clement who told Justice Clarence Thomas that “Congress wanted us to operate as publishers.”

Related: Everything You Need to Know About Moody v. NetChoice and NetChoice v. Paxton

Clement and Prelogar can't have it both ways. These companies either exist as a platform for all with liability protection from how individuals use their platform or as a publisher with the right to censor and legal responsibility for the content they host.

During the oral arguments for Moody v. NetChoice, Clement actually broke down the publisher/platform distinction before stating his own personal misinterpretation of Section 230. “Congress in passing Section 230 looked at some common law cases that basically said, well, if you just a pure conduit that means that you are free from liability, but if you start becoming a publisher, by keeping some bad conduct out, content out, then you no longer have that common law liability protection,” Clement said, before adding, “As I understand 230, the whole point of it was to encourage websites and other regulated parties to essentially exercise editorial discretion, to keep some of that bad stuff out of there.” 

The bad stuff Section 230 attempted to exclude was “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable,” not simply whatever a platform decided it did not like.

Solicitor General Prelogar gave an equally incoherent answer when Justice Neil Gorsuch questioned whether social media companies would lose their liability protections if they were considered publishers. She preceded to restate Clements’ mangled understanding of Section 230. “Congress specifically recognized the platforms are creating a speech product. They are literally, factually publishers, and Congress wanted to grant them immunity,” she said. “It was for the purpose of encouraging this kind of editorial discretion. That's the whole point of the Good Samaritan blocking provision.” 

Justice Samuel Alito also pushed back against the nonsensical claims during arguments for NetChoice v. Paxton

“If you were a newspaper and you published the content that appears in every single one of the videos on YouTube that you allowed to be included, you would be liable potentially for the content of that material. And I don’t understand the rationale for 230 if it wasn’t that you can’t be held responsible for that because this is really not your message. Either it’s your message or it’s not your message, I don’t understand how it can be both,” Alito said. [Emphasis added].

Alito went on to drive home how NetChoice wanted it both ways. “It’s your message when you want to escape state regulation, but it’s not your message when you want to escape liability under state tort law,” he added. 

Conservatives are under attack. Contact your representatives and demand that Big Tech be held to account to mirror the First Amendment while providing transparency and an equal footing for conservatives. If you have been censored, contact us at the Media Research Center contact form, and help us hold Big Tech accountable.

MRC Free Speech Counsel for Investigations Tim Kilcullen contributed to this report.