In the red corner, we have Texas and Florida, whose lawmakers think content moderators are biased against conservatives and want to force the platforms to carry such voices. In the blue corner, we have NetChoice and the Computer and Communications Industry Association, both representatives of a social media sector that wants to retain the right to moderate content as it sees fit. And while the battle is at an early stage—final opinions may be a few months away—it doesn’t look like the states are faring very well.

At the hearing, the justices seemed deeply skeptical about the rationale behind the laws, the enforcement of which is currently blocked by lower courts. And despite the fact that the laws are largely designed to protect conservative voices from suppression, some of the biggest pushback is coming from conservatives who collectively hold a supermajority on the court.

Here’s Justice Brett Kavanaugh, taking Florida Solicitor General Henry Whitaker to task over his invocation of the First Amendment: “In your opening remarks, you said the design of the First Amendment is to prevent ‘suppression of speech,’ and you left out what I understand to be three key words to describe the First Amendment: ‘By the government.’”

Kavanaugh continued: “When the government censors, when the government excludes speech from the public square, that is obviously a violation of the First Amendment. When a private individual, or private entity, makes decisions about what to include and what to exclude, that’s protected, generally, editorial discretion, even though you could view the private entity’s decision to exclude something as, quote, ‘private censorship.’”

In a similar vein, Justice Amy Coney Barrett asked of a hypothetical example involving TikTok’s algorithmic promotion of pro-Palestinian over pro-Israeli posts: “If you have an algorithm do it, is it not speech?” Chief Justice John Roberts had similar concerns, telling Texas Solicitor General Aaron Nielson: “What the government is doing here is saying, ‘You must do this. You must carry these people. You’ve got to explain if you don’t.’ That’s not the First Amendment.” 

Of course, not all the conservative justices were as skeptical—Samuel Alito and Clarence Thomas in particular said they saw content moderation as a euphemism for censorship. But with liberal justices Elena Kagan, Ketanji Brown Jackson, and Sonia Sotomayor all suggesting the state laws are overbroad and/or echoing concerns about incompatibility with the First Amendment, Texas and Florida seem to be in trouble.

However, as Vox’s Ian Millhiser points out, the excessive broadness of the state laws may save them, for now. That’s because they arguably also impose must-carry obligations on other kinds of online services, like Uber and Gmail, whose activities aren’t as obviously protected by the First Amendment. As the NetChoice challenges to the laws are also broad, demanding that the laws cannot be applied to anyone, Millhiser argues that the court may “reinstate the two state laws, at least temporarily.”

Even if that doesn’t happen, the court still may not leave Big Tech with the assurance that all its activities are shielded under the First Amendment—something that the Biden administration, which largely sides with NetChoice, is keen to avoid. Notably, apart from forcing social media companies to carry certain content, the laws in question would also force them to be transparent about their content moderation, which is a notion that enjoys more support across the ideological spectrum.

As Cornell University legal professor James Grimmelmann told The Guardian: “I would predict that the court will issue relatively narrow rulings that make it clear that the most restrictive portions of the state laws are unconstitutional, and then let litigation play out to determine whether other provisions of these laws—or of other future laws—are constitutional.”

The future of American internet regulation probably won’t be settled anytime soon. More news below.

David Meyer

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NEWSWORTHY

Microsoft’s Mistral investment. Microsoft has invested a reported $16 million in French AI darling Mistral, in a move that could lessen Redmond’s reliance on BFF OpenAI. The deal gives Mistral access to its Azure AI infrastructure and adds Mistral’s models to Azure’s catalog for business customers. And you guessed it: The European Commission is already looking into the partnership to see if it raises antitrust concerns; the Commission began scrutinizing Microsoft’s OpenAI partnership for similar reasons last month.

More Apple EU trouble. The European Commission also seems to be preparing to investigate Apple over potential antitrust violations in how it’s killing off “progressive web apps” (web apps that can be directly accessed through a home screen icon) on iOS. Apple is doing this in the name of compliance with the new Digital Markets Act antitrust law, but, as the Financial Times points out, the move also stymies developers who might use web apps to bypass Apple’s 30% commission on App Store purchases. The Commission is asking Apple and affected developers for their opinion, which is typically the precursor to a formal probe. Apple is reportedly also in line for a €500 million fine stemming from an allegation by Spotify that Apple gives its own music-streaming service special treatment on iOS.

Red Sea cable chaos. Multiple data cables in the Red Sea have reportedly been damaged. As The Register reports, this follows a threat by Yemen’s Iran-aligned Houthi rebels to damage communications infrastructure in the region, though military experts have been deeply skeptical about their ability to follow through. Either way, the Houthis’ demonstrable threat to local shipping could hamper repair efforts.

ON OUR FEED

“Right now I’m not saying it’s a bag of nothing, but it’s a bag of not great.”

—U.S. District Judge James Donato doesn’t think consumers will win in Alphabet’s $700 million proposed settlement over Google’s alleged app-store antitrust abuses. Donato reckons the amount is too small, given that the deal would shield Google from Play Store claims for the next seven years.

IN CASE YOU MISSED IT

‘We have consistently flirted with death’: Elon Musk wanted the Boring Co. to build a tunnel system below Las Vegas. Former employees say they feared for their lives while working there, by Jessica Mathews

JPMorgan CEO Jamie Dimon warns no one will be able to escape the claws of AI—and that sets it apart from the dotcom bubble: ‘This is not hype,’ by Orianna Rosa Royle

Why Disney needs a corporate CTO, according to one activist investor: ‘Disney will never be valued as a technology firm until it begins to think like a technology firm’, by Bloomberg

Intel, TSMC, and Samsung are demanding Biden double the funds on hand for chips, Raimondo says, by Bloomberg

Tesla-beating BYD shows off its ambitions—including a 1,200-horsepower luxury SUV that can float on water, by Bloomberg

SpaceX hit by FAA with list of 17 fixes it must make before it tries to launch Starship again after most recent explosion, by Bloomberg

BEFORE YOU GO

Cold-climate heat pumps. Heat pumps don’t generally work so well in very cold climates—given that the aim is to use heat from outside to warm buildings’ insides—but that may soon change. IEEE Spectrum has a fascinating article on the Cold-Climate Heat Pump Technology Challenge, which is backed by the U.S. and Canadian governments. Turns out eight big heat-pump manufacturers have passed the lab phase of the challenge and have moved on to field tests. To succeed, their pumps must work at 100% capacity down to -15°C (5°F), though they can also test all the way down to -26°C (-14.8°F). Commercialization may come as soon as next year.