[Wikimedia-l] Re: Advocacy updates: Wikimedia and the US Supreme Court

Great question, SJ! Hi everyone, I'm Stan Adams, the lead public policy specialist for North America at the Foundation. I am based in D.C. and was able to attend the Supreme Court arguments in person yesterday. I will answer SJ's question below, but based on what I observed at the Court yesterday, I think most of the Justices would be reluctant to uphold the Texas <https://capitol.texas.gov/tlodocs/872/billtext/html/HB00020F.HTM> and Florida <https://www.flsenate.gov/Session/Bill/2021/7072/BillText/er/HTML> laws. That said, these cases won't be the end of legislative attempts to regulate social media and other venues for expression online--I expect to see the Court considering more cases like these as states continue to enact laws that raise First Amendment questions in the online context. As for this case, there could be a range of bad outcomes if the Court upholds these laws, especially if it undermines fundamental First Amendment precedent along the way. Perhaps the worst long-term outcome would be if several other states or even the US Congress replicated the Texas or Florida laws. If those laws were enforced against Wikipedia editors or the Foundation-- say, for editors' regular work of removing content that is inaccurate, unsourced, or that violates NPOV policies <https://en.wikipedia.org/wiki/Wikipedia:Neutral_point_of_view>-- it could become increasingly difficult to operate and maintain Wikipedia. As I mentioned above, I think the Court is unlikely to rule this way for a handful of reasons. First, a broad ruling in favor of the states would just be a lot more work for the Court because it would have to reconcile how these laws can be constitutional without upending several of its own precedents (including cases like *Citizens United* <https://en.wikipedia.org/wiki/Citizens_United_v._FEC>). Second, I think the Court also understands that upholding these laws could have negative consequences outside the realm of social media regulation. For example, if the Court were to find a way to say that online platforms are "common carriers <https://en.wikipedia.org/wiki/Common_carrier>" as Florida and Texas argue, then other services like internet access providers would almost certainly be considered the same. This is a characterization that ISPs and the telecom industry have fought VERY hard to resist in a different policy issue, net neutrality <https://en.wikipedia.org/wiki/Net_neutrality_in_the_United_States>. Justice Kavanaugh, who dealt with this issue when he was a judge in the D.C. Circuit <https://www.scotusblog.com/2018/07/kavanaugh-on-net-neutrality-u-s-telecom-association-v-federal-communications-commission/#:~:text=Kavanaugh's%20dissent%20argued%20that%20the,the%20ISPs'%20First%20Amendment%20rights.> court of appeals, clearly recognized this tension yesterday and made remarks to indicate his concerns about taking this path. In sum, the worst case is dire, but (I hope) fairly unlikely. What's more likely is that the Court sends the cases back to the district courts <https://en.wikipedia.org/wiki/Remand_(court_procedure)> to find out how the laws would actually be applied. For somewhat uncommon procedural reasons <https://en.wikipedia.org/wiki/Facial_challenge>-- the law was challenged for constitutional violations before it was interpreted by courts--the case was fast tracked to the Supreme Court without much of a factual record for the Justices to consider, so no one really knows how the laws actually work. If the Court sends the case back without resolving the constitutional question, it would mean that someone-- probably a large social media company-- would be sued and the litigation would likely make its way back to the Supreme Court eventually. There is also a chance that the laws could be used to sue editors or the Foundation during this phase. (For reference: a Reddit user in Texas was sued <https://www.reddit.com/r/modnews/comments/1awmndt/defending_the_open_internet_again_our_latest/> during the brief period before the law was put on hold, but Reddit was able to have the case dismissed on procedural grounds.) We've shared these concerns with the press and have gotten some coverage <https://www.theverge.com/24080905/supreme-court-arguments-netchoice-moody-paxton-online-speech> helping to amplify the message <https://news.yahoo.com/supreme-court-hears-landmark-cases-on-free-speech-and-social-media-moderation-in-texas-florida-185134180.html?guccounter=1&guce_referrer=aHR0cHM6Ly93d3cuZ29vZ2xlLmNvbS8&guce_referrer_sig=AQAAABBwm9b-eL8pvTG9nYrHHkO2M9QFK12_CXPZPObFNggkrdwcgBADlG4fzta6AyWgfNLBK-huZ1PbC3K2fybaAdkN9T11AimM_OhKrN5sErNNdbHnqqR5m52SrNjhKTZR4HHAxT9Hq_J2j27t7bS8J8mw5AjCSm2KJDGvW0oL4mpt> . I'm happy to answer further questions about this case or other internet policy issues, so please don't hesitate to reach out. All the best, Stan On Mon, Feb 26, 2024 at 1:18 PM Samuel Klein &lt;meta.sj(a)gmail.com&gt; wrote: