The Supreme Court’s NetChoice Cases

On February 26, 2024, the Supreme Court heard oral arguments in the lawsuits brought by the trade association NetChoice against laws restricting content moderation in Florida and Texas.

  “Today’s NetChoice argument was like the Ring Cycle for tech policy aficionados, combining First Amendment, telecom/net neutrality policy, Section 230 and even some discussion of big tech market power into FOUR glorious hours” – Tim Wu.

See also Tim Wu’s New York Times Op-Ed: “Texas is Right – The Tech Giants Need to be Regulated” (February 26, 2024).

The Supreme Court oral arguments:

• Moody v. NetChoice, LLC (docket no.: 22-277) argued on February 26, 2024 (audio available here; docket here); and

• NetChoice, LLC v. Paxton (docket no.: 22-555) also argued on February 26, 2024 (audio available here; docket here).

Text of the Challenged Bills: Florida and Texas

Related commentary:

Daphne Keller (Stanford’s Center for Internet and Society): FAQs About the NetChoice Cases at the Supreme Court – Part I and Part II (January 28 and February 1, 2024)

Law Professor Kate Klonick: “The Four Internet Analogies of the Apocalypse” (February 27, 2024)

Law Professor Zephyr Teachout: “Texas’s Social-Media Law Is Dangerous; Striking It Down Could Be Worse – Beware Giving Big Tech a Constitutional Right to Avoid Regulation” (February 20, 2024)

Law Professor Ilya Somin at the Volokh Conspiracy: “Supreme Court Seems Likely to Strike Down Florida and Texas Social Media Laws” (February 27, 2024)

Law Professors Kyle Langvardt & Alan Z. Rozenshtein in the Yale Journal on Regulation Blog: “The Platforms Should Win the NetChoice Content Moderation Cases—But Narrowly (February 11, 2024)

LawFare Podcast: “The Justices Figure Out that Internet Law is Hard” (February 27, 2024)

A series of Volokh Conspiracy posts at the Reason website relating to social media and common carrier status, the Texas and Florida social media laws, and the NetChoice lawsuits.


The Fight Over the Legal Status of Digital Platforms

In April 2021, Justice Thomas wrote his concurring opinion in Biden v. Knight First Amendment Institute (opinion at the link), concurring in the decision to vacate as moot the case in which the Second Circuit found a First Amendment violation in President Trump’s blocking some users from his Twitter account. The concurrence provides somewhat of a roadmap for future regulation of digital platforms that at least potentially could pass future court muster.

Law Professor Eugene Volokh at The Volokh Conspiracy: “As I read it, Justice Thomas is not arguing that platforms are already generally common carriers or government actors under existing legal principles; that argument is quite a stretch, and his analysis seems to me to largely reject that argument, except perhaps when the platforms are restricting speech in response to government threats. Rather, he is anticipating what might be done through legislation, and whether new state laws that do treat platforms as common carriers (more or less) are going to be seen as blocked by the First Amendment or 47 U.S.C. § 230. (His analysis of the interests involved may also be relevant to whether such state laws violate the Dormant Commerce Clause.) That’s an issue the Court will likely have to deal with in coming years.”

Professor Volokh published a July 5, 2021 draft (pdf; 79 pages) of his law review article “Social Media Platforms as Common Carriers“. He also has written a series of interesting posts at (collected here) discussing the topic.

Developments in Content Moderation

Facebook Oversight Board’s Decision Regarding the Banning of Donald Trump (Case decision 2021-001-FB-FBR) – (pdf: 38 pages; May 5, 2021).

Facebook’s Oversight Board Has Upheld Trump’s Ban – What’s Next: Facebook Moderation Expert Kate Klonick Weighs In (May 11, 2021 – The Verge) – Law Professor Kate Klonick on the potential impact of the Facebook Oversight Board’s Decision.

Content Moderation Remedies (pdf; 76 pages: March 2021) – As internet services begin to consider moving past the binary “remove or not” remedy for content that violates their rules, Santa Clara University law professor Eric Goldman surveys the various remedies that online internet services have applied to content and accounts, and then he provides “a normative framework to help internet services and regulators navigate these remedial options to address the many difficult tradeoffs involved in content moderation.”

Facebook Will Now Ban Criticism of “Concepts, Institutions, Ideas, Practices, or Beliefs” When They Risk “Harm, Intimidation, or Discrimination” Against Religious, National, or Other Groups (July 6, 2021) – Law Professor Eugene Volokh at the Volokh Conspiracy.



Law, Tech and Policy

U.S. Supreme Court Upholds Fair Use in Google-Oracle Software Battle (April 8, 2021) – Santa Clara law professor Tyler Ochoa with a lengthy blog post (8,000 words) explaining the decision.

Why It’s Easier to Move Country than Switch Social Media (April 12, 2021) – Activist and author, Cory Doctorow, on the importance of dealing with switching costs, in addition to a renewed emphasis on antitrust and interoperability.

Token Safe Harbor Proposal 2.0 (April 13, 2021) – SEC Commissioner Hester Pierce, with an update to her earlier proposal for a token safe harbor that would provide network developers with a three-year grace period within which, under certain conditions, they could facilitate participation in and development of a functional or decentralized network, exempted from federal securities registration requirements.

Final Report on Facial Recognition Technology (FRT) – (96-page pdf at the link: “New Surveillance Technologies in Public Spaces – Challenges and Perspectives for European Law at the Example of Facial Recognition” (April 2021)).

President Biden’s Executive Order on Improving the Nation’s Cybersecurity – (May 12, 2021), along with accompanying White House Fact Sheet and Politico’s press coverage

Machine Learning and Artificial Intelligence Resources:

The Coming AI Hackers (pdf; 54 pages: April 2021) – cybersecurity expert, Bruce Schneier.

European Union’s Proposal for a Regulation Laying Down Harmonised Rules on Artificial Intelligence (Artificial Intelligence Act) – (pdfs at the link: the 108-page proposal and a 17-page annex: April 21, 2021).

Andreessen Horowitz’s AI Playbook and AI, Deep Learning, and Machine Learning: A Primer (video: 45 minutes)

An AI Reading List — From Practical Primers to Sci-Fi Short Stories; the best reading on AI, as recommended by the experts – The Verge; part of The Verge’s The State of AI in 2019

Andrew Ng’s AI For Everyone – The Definitive Starting Block for AI Novices and AI for Everyone at

A Visual Introduction to Machine Learning Part I and Part II (from

Machine Learning for Humans (Vishal Maini: strategy & communications at DeepMindAI)

Artificial Intelligence Podcast (Lex Fridman)

Fifty AI Experts to Follow on Twitter (list by Cognilytica)

Google’s The Launchpad applied machine learning “best practices” website

The UC Berkeley Course for 2019 called Introduction to Deep Learning has released their official textbook as an online resource. In addition to the online notebooks, the course also offers a comprehensive playlist of lecture videos

Fairness and Machine Learning: Limitations and Opportunities – an online work-in-process textbook by Solon Barocas, Moritz Hardt, Arvind Narayanan

AI Now Institute and their annual reports and other publications

Global AI Policy Database from Charlotte Stix (Coordinator for the High-Level Expert Group on Artificial Intelligence of the European Commission)

Artificial Intelligence: What Every Policymaker Needs to Know from the Center for a New American Security

Princeton’s Dialogues on AI and Ethics Case Studies

Superintelligence: The Idea That Eats Smart People by Maciej Ceglowski (video: 45 minutes) – “A skeptical view on the seductive, apocalyptic beliefs that prevent people in tech from really working to make a difference”

The Power of Self-Learning Systems (video: YouTube, 64 minutes) presentation by Demis Hassabis, Co-Founder & CEO, Google DeepMind

Mr. Robot – a profile of AI pioneer Geoffrey Hinton (Toronto Life)

Former Head of Google China Foresees an AI Crisis—and Proposes a Solution (IEEE Spectrum) and Who Needs Democracy When You Have Data – Here’s How China Rules Using Data, AI, and Internet Surveillance (MIT Technology Review)


Academic Papers and Reports of Interest:

Artificial Intelligence Policy: A Primer and Roadmap (28 page pdf; updated October 19, 2017) – Ryan Calo (University of Washington School of Law)

AI Now 2017 Report (36 page pdf; October 18, 2017) – Alex Campolo, New York University; Madelyn Sanfilippo (New York University); Meredith Whittaker (Google Open Research and New York University); and Kate Crawford (Microsoft Research and New York University)

Using Targeted Advertising for Personal Surveillance and related paper (12 page pdf; October 18, 2017) – Paul Vines, Franziska Roesner, and Tadayoshi Kohno (University of Washington)

I Never Signed Up For This! Privacy Implications of Email Tracking and related paper (18 page pdf; September 28, 2017) – Steven Englehardt, Jeffrey Han, and Arvind Narayanan (Princeton University)

Is the First Amendment Obsolete? (29 page pdf; September 2017) – Tim Wu (Columbia Law School)

The Pluralist Model of Speech Regulation: Free Speech in the Algorithmic Society – Big Data, Private Governance, and New School Speech Regulation and related paper (65 page pdf; October 13, 2017) – Jack Balkin (Yale Law School)



Law, Tech and Policy

How to Protect the Future Web From Its Founders’ Own Frailty (June 24, 2016) – Cory Doctorow. See also: The Web’s Creator Looks to Reinvent It (June 7, 2016) – New York Times, and The Fathers of the Internet Revolution Urge Today’s Software Engineers to Reinvent the Web (June 13, 2016) – IEEE Spectrum

Open Access: All Human Knowledge is There—So Why Can’t Everybody Access It? (July 6, 2016) – Glyn Moody at ArsTechnica

Researchers Sue the Government Over Computer Hacking Law (CFAA) (June 29, 2016) – Kim Zetter in Wired; See the ACLU’s complaint (pdf available at the link; 47 pages) and the ACLU release

Section 1201 of the DMCA Cannot Pass Constitutional Scrutiny and Research and Remixes the Law Won’t Allow (July 21, 2016) – EFF; See also Statement on DMCA lawsuit by cryptographer and Johns Hopkins professor Matthew Green, who is one of the plaintiffs in the lawsuit, and the complaint (pdf; 32 pages) in the lawsuit. Related: A Dozen Bad Ideas That Were Raised At The Copyright Office’s DMCA Roundtables (May 18, 2016) – TechDirt

Tech Companies Fight Back After Years of Being Deluged With Secret FBI Requests (June 21, 2016) – Jenna McLaughlin at The Intercept

Why Notice-and-Takedown is a Bit of Copyright Law Worth Saving (June 21, 2016) – Los Angeles Times Op-Ed by law professors Chris Sprigman and Mark Lemley

At JustSecurity, a series of July posts on “secret law”: It’s Time to Come to Terms With Secret Law: Part I and Part II by Dakota S. Rudesill, and Secret Law, Targeting, and the Problem of Standards: A Response to Dakota Rudesill – Jonathan Hafetz

The Intriguing Legal Ramifications of Pokémon GO (July 25, 2016) –; Also see The University of Washington Tech Policy Lab’s white paper – Augmented Reality, a Technology and Policy Primer (pdf at the link; 12 pages)

Mary Meeker’s 2016 Internet Trends Report

Reweaving the Web; A Slew of Startups is Trying to Decentralize the Online World (June 18, 2016) – The Economist

EU-related developments (other than Privacy Shield): Apple Joins Wide Array of Tech Companies in Fight to Kill EU’s ‘Cookie Law’ (July 6, 2016) – AppleInsider; European Union’s First Cybersecurity Law Gets Green Light (July 6, 2016) – Bloomberg; and The European Union is Updating its Electronic Signature Laws (June 30, 2016) – The Verge. See also the EU release on the new electronic signature laws.

MIT Researchers Unveil New Anonymity Scheme That Could Rival Tor – David Bisson at

General Interest

Groundbreaking ‘Atomic Memory’ Could Cram Unimaginable Amounts of Data Into Your iPhone (July 19, 2016) – AppleInsider, and Atom Wranglers Create Rewritable Memory (July 18, 2016) – Nature; See the related academic paper: A Kilobyte Rewritable Atomic Memory (pay $ download at the link)

Quantum Computing: A Primer – Andreessen Horowitz video (28 minutes) at the link, plus a good list of further reading on quantum computing

Why Computer Vision Has Become a Major Investment Theme for Me (June 16, 2016) – VC Mark Suster, and The Voice UI has Gone Mainstream (June 6, 2016) – Ben Bajarin

My Time with Richard Feynman (July 11, 2016) – Stephen Wolfram

The Millions’ 2nd Half of 2016 Book Preview (fiction)


2nd Circuit Decision in the Microsoft Ireland Warrant Case

The 2nd Circuit Opinion (pdf; 43 pages)


Microsoft Corporation v. United States of America – Wikipedia

The Microsoft Ireland Case: A Brief Summary (July 15, 2016) – LawFare

News Reports:

Microsoft Wins Appeal on Overseas Data Searches (July 14, 2016) – New York Times

Analysis and Criticism:

Reactions to the Microsoft Warrant Case (July 15, 2016) – LawFare

Second Circuit: Warrants Cannot be Used to Compel Disclosure of Emails Stored Outside the United States (July 14, 2016) and Does It Matter Who Wins the Microsoft Ireland Warrant Case? (July 23, 2016) – Orin Kerr in The Washington Post

Microsoft Just Won a Big Victory Against Government Surveillance — Why It Matters (July 15, 2016) – Daniel Solove at TeachPrivacy

The Microsoft Ireland Case and the Future of Digital Privacy (July 18, 2016) – Jennifer Granick at JustSecurity

Three Key Takeaways: The 2d Circuit Ruling in The Microsoft Warrant Case (July 14, 2016) – Jennifer Daskal at JustSecurity

Microsoft v. USA: A Win for Privacy, or Is It? (July 14, 2016) – Omer Tene at IAPP

Microsoft Case Shows the Limits of a Data Privacy Law (July 18, 2016) – New York Times


Microsoft’s President Explains the Company’s Quiet Legal War for User Privacy (July 22, 2016) – The Washington Post

U.S. Government Presents Draft Legislation for Cross-Border Data Requests (July 16, 2016) – David Kris at LawFare


Recent Developments in Material Support Lawsuits and Regulation of Online Hate Speech

Material Support Lawsuits:

  “The floodgates have opened for lawsuits vs social media sites for supporting terrorist orgs. Latest target: Facebook” – Eric Goldman (@ericgoldman): July 11, 2016

Facebook, Hamas, and Why a New Material Support Suit May Have Legs (July 12, 2016); Another Material Support Suit Against Social Media Companies (June 21, 2016); and Twitter, ISIS, Civil Liability, and Immunity: An Update (May 5, 2016) – Benjamin Wittes (and Zoe Bedell for the July 12th post) at LawFare

Regulation of Online Hate Speech:

Google, Facebook Quietly Move Toward Automatic Blocking of Extremist Videos (June 24, 2016) – Yahoo News

Facebook, Twitter, Google, and Microsoft Agree to EU Hate Speech Rules (May 31, 2016) – The Verge

European Commission and IT Companies Announce Code of Conduct on Illegal Online Hate Speech (May 31, 2016) – EU Press Release; and the related Code of Conduct (pdf; 3 pages)

Previously: See my prior post (03.07.2016): Pressure for Regulating Online Speech Related to Terrorism

Two 9th Circuit CFAA Decisions


FOIA Improvement Act of 2016 Becomes Law; Sufficient Changes?


U.S. Net Neutrality Decision Handed Down

The Opinion: U.S. Telecom Association v. FCC (pdf; 184 pages)

News Reports:

Court Backs Rules Treating Internet as Utility, Not Luxury (June 14, 2016) – New York Times


Net Neutrality Won and Here’s the Essay that Started It All; Tim Wu First Articulated the Concept 14 Years Ago – ReCode

Analysis and Criticism:

Free State Foundation Scholars React to the D.C. Circuit’s Decision on the Open Internet Order (June 15, 2016) – Seth Cooper, Gus Hurwitz, Daniel Lyons, and Richard Epstein

Still Not a Dump Truck: Net Neutrality and the First Amendment (June 15, 2016) – Derek Bambauer at Info/Law

What’s Next:

Net Neutrality Won Big Today, But Don’t Celebrate Just Yet – Wired

Meanwhile in Europe:

Sir Tim Berners-Lee makes a last-minute plea to save net neutrality in Europe (July 15, 2016) – The Verge; See also: text of July 14, 2016 public letter by Sir Tim Berners-Lee, law professor Barbara van Schewick, and law professor Larry Lessig


Burr-Feinstein (Anti-Crypto) Draft Legislation (updated June 7, 2016)

The Latest:

Security Win: Burr-Feinstein Proposal Declared ‘Dead’ for This Year (May 27, 2016) – EFF

Push For Encryption Law Falters Despite Apple Case Spotlight (May 27, 2016) – Reuters

Draft Bill: Text of the “The Compliance with Court Orders Act of 2016” (April 13, 2016)

Press Release by Burr and Feinstein (April 13, 2016)

Interesting Graphic on the Scope of the Bill: The Incredible Breadth of Feinstein-Burr (LawFare)

News Reports:

Senators Introduce Legislation to Compel Tech Companies to Submit Data to the Government (April 13, 2016) – Washington Post

Senate Intel Panel Releases Official Encryption Bill Draft (April 13, 2016) and Intel Chair: Encryption Bill Won’t Specify Noncompliance Penalties (April 12, 2016) – The Hill

Tech Industry and other Reaction:

Internet Association (IA) Statement on the Compliance with Court Orders Act of 2016 (April 11, 2016)

Bill That Would Ban End-to-End Encryption Savaged by Critics (April 8, 2016) – The Intercept

White House Declines to Support Encryption Legislation (April 7, 2016) – Reuters

Rep. Issa Says Senate Encryption Bill Is Flawed and Technically-Naive (April 8, 2016)

Analysis and Commentary:

Encryption Legislation: Critics Blinded by Outrage are Blinded to the Lessons (April 21, 2016) – Susan Hennessey at LawFare

Here’s What the Burr-Feinstein Anti-Crypto Bill Gets Wrong (April 15, 2016) – Riana Pfefferkorn in JustSecurity

Dumb, Delusional Senate Encryption Bill – Or Clever (April 17, 2016) – Jean-Louis Gassée in his MondayNote

The Burr-Feinstein Encryption Bill Is Probably D.O.A. (April 14, 2016) – FastCompany

Anti-Crypto Bill Continues to Miss the Point (April 14, 2016) – CDT

What If Feinstein-Burr Passes? – Paul Rosenzweig in LawFare


California Phone Decryption Bill Defeated (April 12, 2016) – Sacramento Bee

Encryption Legislation Advances in France (April 14, 2016) – Daniel Severson in LawFare

F.B.I. Tells Panel It Needs Hackers to Keep Up With Tech Companies (April 19, 2016) – New York Times


Oracle v. Google Fair Use Trial (link round-up; updated June 7, 2016)

Google Prevails:

Google Beats Oracle—Android Makes “Fair Use” of Java APIs (May 26,2016) – Joe Mullin at ArsTechnica

TechDirt podcast: What Happened at the Oracle Google Trial (May 31, 2016) – Mike Masnick and Sarah Jeong (48 minutes)

Why Google’s Fair Use Victory over Oracle Matters (May 31, 2016) – Paula Samuelson in The Guardian; also Google’s Fair Use Victory is Good For Open Source (June 2, 2016) – Paula Samuelson at ArsTechnica

A Guide to Understanding the Oracle v. Google Legal Battle (May 27, 2016) – Victor Luckerson in The Ringer


Google and Oracle’s $9.3 Billion Fair Use Fight Starts Today, Here’s a Guide (May 9, 2016) – Jeff John Roberts in Fortune

Stakes Are High In Oracle v. Google, But The Public Has Already Lost Big (May 12, 2016) – EFF’s Parker Higgins at TechDirt

In Oracle v. Google, a Nerd Subculture Is on Trial (May 12, 2016) – Sarah Jeong at MotherBoard


General: Oracle America v. Google – Wikipedia

List and Links to Rulings and Related Filings (under the Tab “Documents” following the brief article) – EFF

Supreme Court Declines to Hear Appeal in Google-Oracle Copyright Fight – New York Times:

“Monday’s Supreme Court decision, which was specific to this appeal, means the Oracle-Google saga will now move back to the lower courts to determine another aspect of the case: Even though Google was using copyrighted software, was it only making ‘fair use’ of it . . . ‘You shouldn’t let the owner of an A.P.I. end up owning the other person’s program,’ said Michael Barclay, special counsel to the Electronic Frontier Foundation, a tech nonprofit devoted to civil liberties. ‘I don’t think we’ll find out how bad a day this is for a long time.'”

Solicitor General Brief Argued APIs are Copyrightable: Considering whether to grant certiorari in the Google v. Oracle America case, the Supreme Court earlier in 2015 asked the government to weigh in on the dispute. In response, the Solicitor General filed its brief, surprisingly taking the position that APIs are subject to copyright protection.

The Solicitor General’s Brief for the United States as Amicus Curiae (pdf; 23 pages)

Marc Andreesen tweet: “Obama Administration to software programmers: Drop dead!”

November 2014 “Brief of Amici Curiae Computer Scientists in Support of Petitioner” (pdf; 27 pages, excluding list of amici and tables of content and cited authorities)

Appeals Court Ruling (May 2014) – Court of Appeals for the Federal Circuit

The Appeals Court Decision

Reaction (at that time): Tech World Stunned as Court Rules Oracle Can Own APIs; Google Loses Copyright Appeal – GigaOm

Original Trial and Decision (May 2012) – U.S. District Court, Northern District of California

The Original Copyright Related Rulings: “Order re: copyright ability of certain replicated elements of the JAVA application programming interface” (pdf; 41 pages) and “Findings of Fact and Conclusions of Law on Equitable Defenses” (pdf; 3 pages)

News Article Summing Up the Patent Portion of the Case: Jury Clears Google of Infringing on Oracle Patents – ZDNet

Reaction (at that time): Google Wins Crucial API Ruling, Oracle’s Case Decimated; Java API Packages ‘free for all to use under the Copyright Act’ – ArsTechnica



Law, Tech and Policy

Are US Courts Going Dark? (May 6, 2016) – US Magistrate Judge, Stephen Wm. Smith at JustSecurity

The Second Amendment Case for the Right to Bear Crypto (May 11, 2016) – Susan McGregor at MotherBoard

Facebook Gets Bad Ruling In Face-Scanning Privacy Case (May 6, 2016) – Venkat Balasubramani at Technology and Marketing Law Blog

Introducing the ‘Right to Eavesdrop on Your Things’ – computer science professor Keith Winstein at Politico

Preparing for the Future of Artificial Intelligence (May 3, 2016) – Ed Felten, Deputy U.S. Chief Technology Officer, announces an AI workshop series and interagency working group

Artificially Intelligent Lawyer, IBM’s AI ‘Ross,’ Has Been Hired By Its First Official Law Firm (May 11, 2016) – Futurism

Hail and Farewell to The Google Books Case (May 11, 2016) – law professor James Grimmelmann at PublishersWeekly

The Shape of Things (April 26, 2016) – Tom Coates at Medium

The Proper Channels For Whistleblowers Are Still A Joke (May 3, 2016) – TechDirt

Tech Titans are Busy Privatizing Our Data (April 24, 2016) and The State has Lost Control: Tech Firms Now Run Western Politics (March 27, 2016) – Evgeny Morozov; Also Digital Pioneer, Jaron Lanier, on the Dangers of ‘Free’ Online Culture (April 2016) – WIPO Magazine

General Interest

Historic Computers Look Super Sexy in this New Photo Series by Docubyte and Ink (May 11, 2016) – Creative Review

Inside Palantir, Silicon Valley’s Most Secretive Company (May 6, 2016) – BuzzFeed

Life is Short (January 2016) – Paul Graham