NetChoice Cases: An FAQ

NetChoice Cases: An FAQ

Who will win? Close calls and uncertain predictions abound. Perhaps the most certainty is that there will be a complicated opinion with a lot of splintered votes and a porous holding that fails to clearly resolve everything. This outcome would mirror the Court's approach to sorting out complicated regulatory schemes in cases like Turner.

What will platforms do if they lose? There are multiple ways the Court could decide against the platforms, and multiple things the platforms could do in response. They could fight the laws on other grounds. They could withdraw from Texas and Florida, which would involve far more than just turning off service. They could unleash a tsunami of problematic content, or try to thoughtfully comply with unclear rules.

Does the Court "get" the legal issues in these cases? Since the issues are relatively novel and untested, it's not clear that the Court "gets" the legal issues at all. For example, the specific transparency or notice and appeal rules in the laws have barely been addressed by the parties or courts below.

Don't these laws just make platforms show people what they want to read? Sorta, but the laws also require platforms to permit all viewpoints on topics from politics to pornography to terrorism to cooking. And the laws often forbid platforms to favor one perspective over another.

Is this case about making platforms carry literal Nazis and terrorists, or about making them permit all viewpoints in a democratic debate? The laws impose a weird mix of duties, but the constitutional problem is mostly about the mandatory carriage, not the mandatory permitting of controversial viewpoints.

Does Florida have it in for eCommerce sites? Florida's law is unlike Texas' in several respects, but yes, Florida seems to be trying to hurt eCommerce. Its law imposes duties on a wide range of platforms, defines covered platforms to include many sites that are predominantly about selling stuff, and sets complicated journalism and political speech rules that seem to disadvantage sites that aren't newspapers or broadcasters.

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Got a question about the NetChoice cases that aren't answered here? Ping me at @jasonharper10 on Twitter, or email me at jasonharper@law.stanford.edu and I might add it to a future FAQ.

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