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 meta.sj@gmail.com wrote:

What's the worst-case scenario for us to be concerned about, if these are upheld?

On Mon, Feb 26, 2024 at 1:12 PM Franziska Putz fputz@wikimedia.org wrote:

...

Dear all,

I’m Ziski from the Global Advocacy team. I’d like to draw your attention to important hearings happening this week at the United States Supreme Court.

The hearings on two cases that will be crucial for Wikimedia have just started: NetChoice, LLC v. Paxton and Moody v. NetChoice, LLC. Both cases are challenges to state laws in Texas and Florida, which impact content moderation on social media websites. You may recall that back in December, the Foundation issued a "friend of the court https://en.wikipedia.org/wiki/Amicus_curiae" brief urging the Justices to strike down these laws, explaining that they pose a serious threat to projects like Wikipedia. You can read about our position on Diff, in our https://diff.wikimedia.org/2023/12/07/texas-and-florida-laws-are-unconstitutional-and-threaten-volunteer-editors-right-to-edit-wikipedia/press release https://wikimediafoundation.org/news/2023/12/07/wikimedia-foundation-calls-on-us-supreme-court-to-strike-laws-that-threaten-wikipedia/, and in the https://diff.wikimedia.org/2023/12/07/texas-and-florida-laws-are-unconstitutional-and-threaten-volunteer-editors-right-to-edit-wikipedia/ brief https://www.supremecourt.gov/DocketPDF/22/22-555/292649/20231207143139081_22-277%2022-555%20ac%20Wikimedia%20Foundation.pdf itself. https://diff.wikimedia.org/2023/12/07/texas-and-florida-laws-are-unconstitutional-and-threaten-volunteer-editors-right-to-edit-wikipedia/

The US Supreme Court is hearing the cases now, and we are there in person talking to stakeholders and observing the proceedings. We expect the Court to rule this year and will be providing updates as we know more.

The problem: As they are written, these laws prohibit website operators from banning users or removing speech and would generally risk Wikipedia’s volunteer-led systems of content moderation. That’s because these laws were designed to prevent social media platforms from engaging in politically motivated content moderation, but were drafted so broadly that they would also impact Wikipedia. The case is also important beyond the impact it might have on our projects. It represents a scenario that is part of a trend globally, where governments introduce legislation to address harms from big tech actors, yet Wikimedia ends up as the dolphin inadvertently caught in the net. This is one reason that WMF is working alongside affiliates to raise awareness about how Wikimedia’s model of community-led content governance works and why it is important to protect.

What to watch for: We will be monitoring these developments closely in the United States, with an eye to possible ripple effects in other countries.

We will provide updates on how the Court rules later this year. In the meantime, please reach out with any questions or comments and look at the resources we’re compiling on how to explain the Wikimedia model https://meta.wikimedia.org/wiki/Global_Advocacy/Resources to policymakers.

All the best,

Ziski

Franziska Putz (she/her)

Senior Movement Advocacy Manager

Global Advocacy, Wikimedia Foundation

Fputz@wikimedia.org

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