Arguments are just beginning, and at some point I’ll have to leave for class.

At this early point, it appears that Roberts, Sotomayor, Kavanaugh, and Kagan have all expressed great skepticism of these rules.

Justice Jackson pointed to some of the things that Facebook does that qualify as speech and some things that don’t. The questions suggest that at least some of the things that Facebook does are protected speech.

Kavanaugh asked if the antidistortion language in Buckley (saying government cannot equalize speech) and the precedent of Tornillo as to newspapers’ editorial discretion seems to doom this case.

Justice Thomas suggested that this should have not have been a facial challenge, which would be a way to duck deciding the merits in this case. So far, no other takers among the justices.

Justice Gorsuch asks about whether Section 230 preemption could dispose of parts of this case.

Justice Kagan made the same point I did in my recent Slate piece and in our brief about how when Musk took over, it changed the nature of the site. This shows content moderation is expressive:

It should be no surprise that after Elon Musk took over Twitter and changed its moderation policies to make the platform’s content less trustworthy and more incendiary, users and advertisers reevaluated the platform’s strengths and weaknesses, with many choosing to leave. Content moderation policies shape how the public perceives a platform’s messages. Content moderation decisions—including Musk’s, whether wise or not—are the exercise of editorial discretion. The public then decides which platforms to patronize, value, or devalue.

Justice Barrett, who had been quiet, suggests that platforms exercise editorial control like newspapers. More bad news for the Florida law.

[This post has been updated and corrected. It originally referenced Texas law.]