Clement runs down the differences between FL's law and TX's law. He gives examples of "viewpoint neutral": "if you allow suicide prevention content, you have to allow suicide promotion content. If you allow prosemitic content, you have to allow antisemitic content."
Clement points out the law also forces sites to engage in expressive activity in TX (the law prevents sites from saying "okay, we can't comply with this law so we just won't offer services to TX")
Clement once again goes back to the legislative record on S230 and repeats the statement that Congress *intended* to allow sites to exercise editorial discretion. Which is true! But again, THIS IS NOT A FUCKING SECTION 230 CASE, MOTHERFUCKERS
Gorsuch tries to gotcha with "well, can a site write an algorithm that ATTRACTS teens to damaging content" and Clement parries with "well, it's still speech, but you can regulate it with different, content-neutral regulations"
Kagan: Should we distinguish specific speech with "we find this person so odious that we don't want to carry any of their speech, even cat videos"? Clement essentially makes the Nazi bar argument.
(He got giggles with "if you have a white supremacist posting white supremacist content, eventually people will ask, what is going on with this person, why are all the dogs you're posting white?")
We bring up the EU's DSA! "If it's not too much of a burden for our clients to do in Europe, how is it too much of a burden for them to do it here?" Clement distinguishes the DSA from TX's law and valiantly avoids saying the DSA is also a dumbfuck law.
Also Thomas: "Some of your clients are enormous! Don't you have to provide something to show what resources would be required?" Yeah, well, some of Netchoice's clients are tiny! Hello, we exist! (Clement cites to YouTube's declaration calling this 100 times more burdensome than the DSA.)
(We are not in on these challenges because they happened before we joined, and I think both FL and TX have size provisions we don't meet. I know FL does, I am *pretty* sure TX does.)
"I don't see how a publisher could be held liable for fiction -- I take that back," Alito says, realizing that he's about to make a dumbfuck argument even for him
Kagan gets again at the provision of the law about how you can't deny service to TX residents and says she didn't read the law that way. Ma'am. Ma'am, it is a plain fucking reading of the statute.
Clement: "The legislators in TX told their constitutents, if you like your website, don't worry, you can keep it --" and I crack up so badly I miss the next 30 seconds of argument.
Sotomayor goes back onto public accomodations laws. THE DIFFERENCE IS THAT PUBLIC ACCOMODATIONS LAWS DO NOT INVOLVE EDITORIAL DECISIONS OR PROTECTED CLASSES.
Kavanaugh: "Can I ask a question, I don't have to buy anything you just said about net neutrality to rule for you here, right? I don't have to agree with you?" (laughter)
State lawyer up for arguing, launches straight into the telegraph argument (and stumbles over his words a few times; all of these lawyers are very bad at reading prepared speeches from their notecards)
Thomas: "If this is so clearly in a common law tradition, as you say, why hasn't Congress seen fit to act as Texas has and Mr Clement suggests that s230 is intended?" State: "That's not what Congress intended with s230." Uh, the LITERAL AUTHORS OF S230 SUBMITTED AMICUS BRIEFS HERE
it may in fact be hard to tell where conduct starts and speech ends, Texas, but I guaranfuckingtee the line is WAY THE FUCK OVER THERE FROM WHERE YOUR LAW PUT IT
Texas, disingenuously: "We can't make [sites] say anything they don't want to say!" about A LAW THAT LITERALLY FUCKING HAS A COMPELLED SPEECH PROVISION TO IT
The state argues that Netchoice is using "the most vile examples" and does not understand that the speech we are talking about is ALL THE VILE EXAMPLES and also the definition of "vile" is FUCKING EDITORIAL DISCRETION
ACB asks for a list of sites that TX law covers. State: "They say Facebook, Twitter, and YouTube." ACB: "That's *their* definition, what's *your* position?" State: rattles off size provision and says he doesn't know what other sites might be covered by it.
State immediately corrects himself and says he forgot that there's a definition of "social media" in the law. Sotomayor: "The district court thought it covered WhatsApp, what do you think?" State: "We, uh, don't know."
State immediately corrects himself and says he forgot that there's a definition of "social media" in the law. Sotomayor: "The district court thought it covered WhatsApp, what do you think?" State: "We, uh, don't know."
The state argues that of course the law doesn't say you can't stop doing business in TX, in contradiction to the plain fucking language of the fucking law
The State starts pulling the "you're the product, they're selling your data" blah blah blah. NOT ALL NETCHOICE'S MEMBERS ARE DOING THAT, MOTHERFUCKER, WE EXIST
Kavanaugh pressing the State on precisely what speech TX says you can't remove, the State concedes that the law says you can't remove pro-al-Qaeda speech while leaving anti-al-Qaeda speech and you'd have to just remove everything about al-Qaeda
The State throws a bunch of fucking buzzwords (Orwell! Voluntary communications! Drink!) and my eyes glaze over, only to tune back in when his buzzword shouting includes "Sir, this is a Wendy's"!
The State: "Meta invested massive amounts of money to break up the Twitter monopoly with Threads and failed miserably!"
rahaeli: Amazing. Literally every word of what you just said was wrong.
blah blah blah blah common carrier blah blah railroad blah blah cable companies blah blah Wild West blah blah public accomodation blah blah market power blah blah cellphones oh god someone please put this man out of everyone's misery
In context, to me, that specific thing, where Texas’ Solicitor General is saying “there has to be a place where these kinds of private conversations can happen, where someone can say “Sir, this is a Wendy’s”” —
bsky.app/profile/penn...
TY for livetweeting this as I'm laying in bed recovering from a lumbar puncture and I need laughs and I just. Love this.
Once I was at a Wendy's and the drive-thru worker was telling her coworker an anecdote that ended in "and I was like sir this is a Wendy's" and I put all my cash in the tip jar.
Thanks! Feeling ok so far which I think is in part bc they were like "make sure to take it easy after" and I have had enough medical procedures by now to be like "become one with the blankets for 24 hours, got it."
The blankets have accepted me as one of their own.
(Ot but about lumbar puncture: lie flat until you just have to get up. Then return immediately to laying flat. It really mediates the post puncture headache).
this is literally not a joke, the lawyer representing the state of texas was just throwing spaghetti at the wall and the words "sir this is a wendy's" came out of his mouth
