Gus Hurwitz on the Supreme Court’s NetChoice Cases

ICLE Director of Law & Economics Programs Gus Hurwitz was quoted by Business Insider in a story about the U.S. Supreme Court’s NetChoice v. Paxton and Moody v. NetChoice. You can read the full piece here.

“If the states win, then I expect that we are going to very quickly have a very different sort of internet experience,” Justin (Gus) Hurwitz, academic director of the University of Pennsylvania’s Center for Technology, Innovation & Competition, told BI.

Hurwitz said companies will likely do two things immediately: “The first is they will, at least on a temporary basis, stop hosting content, comments, user-generated speech, discussion forums, and things like that.”

…The second action social companies would likely take, Hurwitz said, would involve identifying new ways to operate in an environment where the government could compel them to host certain types of speech — which could mean blocking features like forums from being accessed in states like Florida or Texas.

…Florida’s argument broaches a broader question raised by the two laws, Hurwitz noted: whether social media companies should be treated as publishers, like a newspaper which has editorial discretion, or common carriers like phone companies, which offer connectivity to everyone regardless of what they’re saying to the person on the other line.

…”And what is social media? You can see how it has characteristics of both,” Hurwitz said, “But they’re not newspapers. They’re not phone companies. They’re not shopping malls or telegraphs. They’re not radio or broadcast TV or cable television. They’re something different. So that’s the dichotomy: Are they more like newspapers or common carriers? The answer might just be, no, that they’re something different altogether, and there’s got to be some other way that the Court tells us we need to think about the First Amendment issues in these cases.”

…Ultimately, Hurwitz noted, five or six justices appeared poised to declare that the laws violate First Amendment precedents. However, he expects the court’s ruling on these cases will raise deeper legal questions than the initial issues at hand.

“This is probably an epochal case. It’s going to raise more questions than it answers and could define the discussions we will have around these topics for the next 10, 20, even 30 years,” Hurwiz said. “And it’s probably going to do very little to actually answer any of those questions — because they’re hard, hard questions. So if you’re watching this case, expecting this is going to answer the issue once and for all, prepare to be disappointed in really interesting ways.”