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Skeptical but unpersuaded: SCOTUS hears online speech cases

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Becka Bowyer

The Supreme Court heard a pair of cases that will influence the future of online speech and the limits of future tech regulation. The following Cornell University experts are available to provide analysis on Monday’s oral arguments.

Gautam Hans

Associate Clinical Professor of Law

Gautam Hans, associate clinical professor of law and associate director of the First Amendment Clinic, analyzes the legal and policy issues implicating technology and civil liberties and has recently written on these cases

Hans says:

“The arguments today demonstrate many of the justices’ awareness that while these state laws have significant problems, allowing the companies to escape any kind of regulation would create severe democratic challenges. I believe that the court recognizes the problems with a sweeping ruling for either side, though we will have to see what the final opinions say. Many issues will almost certainly remain open for future litigation.”

James Grimmelmanm

Tessler Family Professor of Digital and Information Law

James Grimmelmann, professor of digital and information law, studies how laws regulating software affect freedom, wealth, and power. Grimmelmann is an expert in content moderation, search engine regulation and online governance.

Grimmelmann says:

“Many of the justices seemed skeptical of the core anti-content-moderation rules in the Florida and Texas laws but were also unpersuaded by the Internet companies’ broad arguments that almost everything they do is protected by the First Amendment. They were most sympathetic to the arguments made by the Solicitor General, Elizabeth Prelogar, that the First Amendment protects many kinds of ranking and moderation decisions like the Facebook News Feed, but not necessarily e-commerce and pure transmission of speech, like Uber and Gmail.

“The challenge for the justices is that the cases came to them in an ‘all or nothing’ procedural posture, and they spent a lot of time trying to figure out whose fault that was and what they should do about it. If I had to guess, 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.”

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