A newsletter briefing on the intersection of technology and politics.

With Monday’s oral arguments in Murthy v. Missouri, the court has now heard all four. Given that the court has yet to rule in two of them, it would be premature to draw firm conclusions. Still, close observers are starting to sense how the justices are thinking about social media in relation to the First Amendment. The Tech 202 talked with three legal experts who’ve been following the cases to get their takeaways. 

When the court last year took up a pair of cases that appeared to threaten Section 230, the social media industry’s prized liability shield, many wondered if “they were going to come in with a sledgehammer” and rewrite the rules of the internet, said Evelyn Douek, a professor at Stanford Law School. But from early in those arguments, it became clear that a majority of the justices were wary of blundering into uncharted territory. 

“We really don't know about these things,” Justice Elena Kagan admitted at one point. “You know, these are not, like, the nine greatest experts on the internet.” 

In those cases, Twitter v. Taamneh and Gonzalez v. Google, the court ruled for the tech companies and sidestepped Section 230 altogether, largely maintaining the status quo. They’ve continued to tread carefully in the subsequent cases, Douek said, appearing “more interested in trying to find a scalpel and proceed more cautiously.” 

Steve Vladeck, a professor at University of Texas School of Law, agreed. “They’re viewing it as actually thorny and nuanced,” he said, “which I think is not necessarily what folks might have hoped or feared when they started jumping into these cases last year.” 

Several of the cases the court has taken up arise from a conservative-led project to cast online content moderation as an insidious form of censorship that deprives Americans of their First Amendment rights. That’s especially true of the cases involving state laws in Florida and Texas that would limit tech companies’ ability to suppress users’ posts, which the court heard in February, and Murthy v. Missouri, which questions the Biden administration’s communications with tech companies about the coronavirus and election misinformation.

That project has resonated in some lower courts and with Justices Clarence Thomas and Samuel A. Alito Jr. One conservative Louisiana district judge found that the Biden administration had carried out “the most massive attack against free speech in United States’ history.”

But so far, a majority of the court seems to view it with skepticism — including Trump appointees Brett M. Kavanaugh and Amy Coney Barrett and at times Chief Justice John G. Roberts Jr. All three asked questions that suggest they’re inclined to view social media companies as private actors with their own First Amendment rights. And they compared social media to traditional media rather than to utilities such as phone companies that are regulated as common carriers. 

Reviewing the Florida and Texas laws, in cases known as Moody v. NetChoice and NetChoice v. Paxton, Roberts remarked that the First Amendment prohibits the government, not private companies, from censoring speech. And when Alito said during the Murthy v. Missouri argument that he couldn’t imagine government officials pestering the New York Times the way they did Facebook, Kavanaugh and Kagan — both former White House lawyers — were quick to disagree. “Like Justice Kavanaugh, I’ve had some experience encouraging press to suppress their own speech,” Kagan quipped. 

The bid to recast tech firms’ content moderation as illegal censorship “is already in the middle of failing, and I think is going to fail,” Vladeck said. “This is a court that grew up with a very, very rigid understanding of where the line is between government and private corporations,” he said. “Even if there are two or three justices who might be inclined to move that line a bit, there aren’t four.”

After sidestepping Section 230 last year, the court in the more recent cases turned its attention to the relationship between online speech and the First Amendment. Those cases involve tensions between the speech rights of users, the rights of platforms to decide what appears on their platforms, and even the expressive rights of government officials. 

Last week, the court ruled in two such cases, Lindke v. Freed and O'Connor-Ratcliff v. Garnier, which involved public officials’ right to block constituents on social media. Rather than establishing or denying a blanket right, the court adopted a “middle of the road position,” Vladeck said, which is that it depends on the context. “That’s going to create a lot of headaches for lower courts. But it reflects the fact that the two extremes in most of these cases really are pretty extreme.”

“I think all of the cases involve a delicate balance between the protections of the First Amendment and the ability of the government to govern,” said Alex Abdo, litigation director for the Knight First Amendment Institute at Columbia University. “I think the recent hearings suggest that the court appreciates this balance and is attempting to navigate it in good faith.” 

And in Murthy v. Missouri, Abdo added, “They really seemed to appreciate the important role of government in persuading private actors of all kinds,” as long as that persuasion isn’t backed with coercive threats. “The court seemed to recognize that the First Amendment imposes an important limit but doesn’t erect a complete barrier between the government and the platforms.”

While we still don’t know exactly how the court will rule on the Florida and Texas laws and Murthy v. Missouri, Douek said, it seems safe to say that this court is not prepared to fully embrace the right’s campaign against content moderation. “A year ago, we might have said everything’s up for grabs” in terms of how the court could overhaul online speech, she said. As of today, “It seems much more limited than that.”

Apple keeps losing patent cases. Its solution: Rewrite the rules. (The New York Times)

Justice Department to push for TikTok divestiture in Senate briefings (Bloomberg News)

Key senator criticizes Mnuchin’s TikTok bid, ties to Gulf money (Semafor)

Microsoft hires DeepMind co-founder Suleyman to run consumer AI (Bloomberg News)

Saudi Arabia plans $40 billion push into artificial intelligence (The New York Times)

OpenAI is expected to release a 'materially better' GPT-5 for its chatbot mid-year, sources say (Business Insider)

Threads is rolling out trending topics to all users in the U.S. (TechCrunch)

Meta shows how Threads could handle ‘fediverse’ sharing (The Verge)

Users ditch Glassdoor, stunned by site adding real names without consent (Ars Technica)

Would you pay $40 a month to watch your favorite sport? (By Shira Ovide)

Court jails first person convicted of cyberflashing in England (The Guardian)

• Washington Post Live hosts “The Futurist Summit: The New Age of Tech,” Thursday at 9 a.m., featuring interviews with Open AI VP Anna Makanju, Intel CEO Pat Gelsinger, Sen. Mark Warner (D-Va.) and Sen. Todd Young (R-Ind.), among others. Register here to watch.
• The Senate Commerce Committee holds a hearing, “Spectrum and National Security,” on Thursday at 10 a.m.
• The House Oversight Committee holds a hearing, “White House Overreach on AI,” Thursday at 10 a.m.

That’s all for today — thank you so much for joining us! Make sure to tell others to subscribe to The Technology202 here. Get in touch with Cristiano (via email or social media) and Will (via email or social media) for tips, feedback or greetings!