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The transcript of the oral argument in Citizens United gets a little lengthy for a full blockquote of the relevant section here, but this summary really does get at the essense of how it went down:
[In the full transcript, other justices piled on to really pin him down that he really was actually claiming the ability to ban such books.]
There's a saying that you usually can't win a case in the Supreme Court based on oral arguments, but you can lose one. There are many details (e.g., the procedural posture was inherently weird in that they asked for a reargument) that I will gloss over, but this sure seemed like one of those moments where the government may have gone a long way to losing a case based on their capacious response in oral arguments. I just finished listening to the social media cases this morning, and this colloquy from the Florida argument really stuck out and reminded me of the days of old, also from Alito:
Quite capacious, indeed! Again, Justices Roberts and Gorsuch piled on a bit to get him to really spell out how they could discriminate, even for direct messages.
These cases have allllll sorts of details and issues (e.g., it's a preliminary injunction on a facial challenge, which took up the lion's share of the argument time), but however the Court deals with it, I cannot imagine that it will be an across-the-board victory for the challengers. I cannot imagine five members of the Court will sign off on saying that the Constitution guarantees GMail the right to refuse private communications service based solely on their dislike of an individual's politics. The best I think the challengers could hope for is some vague kicking of the can back down, maybe giving in on a temporary injunction in order to develop a better record, but maybe having a classic Kavanaugh concurrence where he says some form of, "...and if you come back here saying that the result you came up with would Constitutionalize allowing GMail to refuse service solely on their dislike of an individual's politics, we will absolutely rule against you on the merits."
Sure enough, when Solicitor General Prelogar for the federal gov't entered the chat and Alito asked her if she agreed with the challengers' position on email services, she flatly disagreed with them. No one may ever know if she had actually game-planned this conversation or expected to have to explicitly disagree with them... or if she just was smart enough to have read the room and knew that whatever she came up with, she couldn't agree with them.
I can't imagine trying to predict exactly what the Court will come up with... there were a lot of indications that went the other way, too, and this one factor certainly isn't going to necessarily lead to a broad ruling in the other direction, but I also can't shake the feeling that we're really starting to see the 90s internet consensus finally cracking and crumbling. By that, I mean the consensus that was always bought and paid for by powerful internet companies who have held the line that they can do absolutely anything they want and cannot be held accountable for anything they do. They're the important part of the internet, and without them, they imagine that the entire 21st century economy will come to a halt. But it is only them, because they never really believed the propaganda around Net Neutrality; they never actually thought that it was a serious concern that maybe ISPs would start kicking folks off the net because of politics (at the time when there were precisely zero examples of this); that was just a play to try to reduce their costs at the expense of infrastructure companies. They're the ones who should be allowed to kick you off the net because of politics. As they dig their hooks deeper into every aspect of your internet experience, where you use your Google device to connect to your Google internet service, and only interact with the Google AI who tailors your entire experience, it will all be shaped at their whim, to their political preferences. Maybe, just maybe, we'll avoid that dystopia.
But what you really came here for is the memes, and the Texas Solicitor General at least tried to bring them for you. First, a shout out to all the lurkers out there! We love you guys!
Has anyone ever acknowledged the existence of lurkers in front of the Supreme Court before? Second, he tried describing the need for internet companies that allow individuals to control their own private communications, and that if the line is that if private companies provide the service, they can do literally anything they want, inject/reject whatever politics they want, versus if gov't provides it, then all that stuff ("censorship") is forbidden, then he basically said that we'd need to spin up a gigantic government internet 'company' to do that stuff if we want it without censorship. It was a little hard to follow, and his line certainly didn't land perfectly, but at least he tried:
As much as I have a strong desire to be able to respond to stuff like the latest Gemini hamfisted diversity-in-image-generation with, "Sir, this is a Wendy's," and that they just need to fuck right off with their politics in products that could provide the world incredible mundane technological benefits, we're probably going to have to muddle on with pretty powerful politicized internet companies even after these cases. The only current alternative of giving all that power to government may be the only thing that's worse. So, I guess, here's to rooting for it not being too much of a hash!
This is the case where Texas wants to prevent social media from censoring and the social media companies are claiming a First Amendment right to censor, right? Note that the "conservative" Supreme Court has given a green light to the Biden administration leaning on the social media companies to engage in censorship; I don't think they're going to want the states interfering with that censorship.
Sometimes, merits go strongly with the way that the preliminary injunctions and stays go; sometimes, they don't. I'd agree that this was a mildly concerning signal, but we're getting a full review of the merits on the question, with oral argument in three weeks. I'm really interested to see how they're going to sound.
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