Supreme Court Justices Laugh at Argument in Social Media Hearing

A joke from one of NetChoice's attorneys scored a round of laughs from the Supreme Court justices during the social media hearing before the high court.

The justices were heard laughing at an analogy used by Paul Clement, the lawyer representing tech group NetChoice, during Monday's oral arguments in a pair of cases that could fundamentally change the way social media companies operate—Moody v. NetChoice and NetChoice v. Paxton.

During the hearing, several of the justices were heard laughing when Clement posed a hypothetical where he wanted to create a Catholic website that wanted to keep off someone "who is a notorious Protestant" before arguing that he should then be allowed "to preserve the nature of the discussion on my forum."

"The government can't tell me, as a private party, to let the Protestant into the Catholic party," he argued.

The cases before the Supreme Court are being brought by NetChoice and the Computer & Communications Industry Association, two industry groups that are seeking to block social media laws in Texas and Florida from taking effect. The laws were introduced after former President Donald Trump was banned from Facebook, Twitter and YouTube in the wake of the January 6, 2021, Capitol riot.

The Texas law bans social media platforms from taking down political content based on the "viewpoint" of a user, while the Florida law allows platforms to be fined if they permanently bar a candidate for office from their sites. Both laws were passed in 2021.

The tech groups argue that the laws restrict social media companies from their First Amendment right to practice editorial discretion over their platforms, including the ability to take down content as they see fit. If the Supreme Court rules in favor of Texas and Florida, social media platforms would be forced to carry content they do not want to.

Critics of the state laws argue that could include extremist content that currently would be removed for violating company policies. They also argue it could limit the discussion of political conversation the government does not agree with.

Clement also drew laughs from the bench earlier in the hearing, when he was asked by Justice Elena Kagan about content moderation of cat videos.

"There are some speakers where they're so associated with a particular viewpoint that it informs essentially all of their speech, and it also affects the speech of other people in the forum," Clement answered. "If you have a white supremacist on your speech forum and they're posting there, it's going to cause a lot of other people to say, What is that person doing? What's going on here? Why are all the dog photos white?"

Several laughs were heard in response to his joke.

"It's going to fundamentally change the dynamic on the website," he argued. "And I think a website that's trying to promote a particular discussion, has a First Amendment right to exclude those people."