[00:00:00] Speaker 03:
This appeal is about whether the definition of social media in Utah's Minor Protection and Social Media Act is content neutral.

[00:00:28] Speaker 03:
The district court incorrectly concluded that it is not, and because of that error, it applied the wrong level of scrutiny to the entire Act.

[00:00:36] Speaker 03:
This court should reverse that determination and the resulting injunction and remand for the application of intermediate scrutiny.

[00:00:44] Speaker 03:
Turning first to the content neutrality decision, the district court told them that the Act's central coverage definition is content-based was wrong.

[00:00:52] Speaker 03:
A law is content neutral when it does not discriminate based on the topic or message discussed, or as Reagan said, when it is agnosticized content.

[00:01:01] Speaker 03:
That is so here.

[00:01:03] Speaker 03:
The definition does not differentiate between any topic, message, or purpose discussed.

[00:01:09] Speaker 03:
It applies no matter what appears on a platform site.

[00:01:14] Speaker 03:
Rather than regulating content, the definition is instead designed to determine whether a platform contains certain structural features.

[00:01:21] Speaker 03:
Justice Turner applied to cable companies of a certain size, and Reagan applied based off of the location of signs.

[00:01:30] Speaker 03:
The district court focused on one particular element of the definition in its content-based holding, and that is whether or not a platform allows users to interact socially within that platform.

[00:01:43] Speaker 03:
The court focused on the interact socially phrase in particular.

[00:01:48] Speaker 03:
That focus on that phrase was wrong,

[00:01:51] Speaker 03:
that is not a content-based restriction.

[00:01:53] Speaker 03:
The term interact socially just refers to the fact that a site allows users to interact with each other within the platform.

[00:02:01] Speaker 03:
It does not regulate speech of any type of content message or purpose.

[00:02:06] Speaker 03:
The District of Florida recently looked at a similar law to determine whether or not it was content neutral, and I believe it got it right in the Uthmeyer case.

[00:02:16] Speaker 02:
Council, excuse me.

[00:02:18] Speaker 02:
Do we have enough in the record

[00:02:20] Speaker 02:
to make a determination of what's content neutral and what's not?

[00:02:26] Speaker 03:
I believe the court has enough on the record to make a content neutrality determination.

[00:02:30] Speaker 03:
That's a legal conclusion we've got.

[00:02:33] Speaker 02:
Don't we have to do that on all of the different platforms?

[00:02:38] Speaker 03:
Well, certainly.

[00:02:38] Speaker 03:
Let me clarify my answer.

[00:02:40] Speaker 03:
To the extent the court is just looking at whether or not the definition is content neutral, I believe there's enough on the record to make content neutrality determination on that.

[00:02:50] Speaker 03:
But I think the honor is right that once that determination is made that that definition is content neutral that just opens the door for further inquiry because net choice has challenged several different provisions.

[00:03:02] Speaker 03:
under the Act.

[00:03:04] Speaker 03:
And for each of those provisions, I think the court would have to look at those provisions to determine whether or not they satisfy content neutrality, and if so, what level, and then to apply the appropriate level of scrutiny.

[00:03:17] Speaker 03:
So I do think there are ultimately no determinations.

[00:03:21] Speaker 03:
The district court has not made those determinations.

[00:03:23] Speaker 03:
It's holding was based entirely on the definitions.

[00:03:26] Speaker 03:
And because the definition it said was content based, it then applied strict scrutiny to everything without

[00:03:32] Speaker 03:
breaking it up into the individual challenges and conducting the facial analysis to determine what level of scrutiny applied.

[00:03:40] Speaker 03:
And then if so, determining, weighing their constitutional applications against any unconstitutional applications.

[00:03:47] Speaker 03:
and then weighing them against the rest.

[00:03:48] Speaker 03:
So I think all of that would have to be done by the district court, which is why we are just asking on this appeal for the court to make a determination on whether the definition is content neutral and then to remand back to the district court so that those further proceedings can be held there for it to make those many determinations on the first instance.

[00:04:08] Speaker 02:
Are you saying that there's just one issue to be decided whether

[00:04:13] Speaker 02:
the definition is content neutral or not.

[00:04:18] Speaker 02:
Yes.

[00:04:19] Speaker 02:
How can you possibly do that, given all the different platforms and just the whole spectrum of platforms, it seems to me, has to be examined.

[00:04:37] Speaker 03:
Well, I think that's true to determine whether or not the act is

[00:04:41] Speaker 03:
unconstitutional, whether or not it fails, whatever level of scrutiny is applied.

[00:04:46] Speaker 03:
But I think as far as determining whether or not the definition is itself content neutral, I think that that can be done based off of the text of the statute.

[00:04:57] Speaker 01:
Let me ask a question about the operation of the statute.

[00:05:02] Speaker 01:
As I understand, it limits the visibility of minor accounts.

[00:05:08] Speaker 01:
In your view, could a minor receive a friend request from an account with which it was not connected?

[00:05:16] Speaker 03:
Yes, an RBO miner could receive a friend request from an account with which it is not connected.

[00:05:21] Speaker 03:
Just that miners account name or handle as it's sometimes called can't appear in the mass search indexing function of a site.

[00:05:31] Speaker 03:
So a stranger couldn't say, I want to see all

[00:05:35] Speaker 03:
Aaron Middletons in Salt Lake and have that show up.

[00:05:39] Speaker 03:
But if the requester knew my exact handle, then they would be able to send a friend request.

[00:05:47] Speaker 03:
And I could accept that request, a minor could accept that request without parental consent.

[00:05:53] Speaker 03:
But again, I think that goes to a separate question that goes back to one of the individual provisions of the act and is a separate consideration from whether or not the act is content neutral.

[00:06:04] Speaker 01:
by the definition as content neutral, which is... No, I understand that.

[00:06:08] Speaker 01:
I was just trying to understand more broadly how the act function.

[00:06:12] Speaker 01:
And so I get that.

[00:06:13] Speaker 01:
Go ahead, please.

[00:06:16] Speaker 03:
So looking at the district court's ruling on socially interacts, it's ruled that that distinguishes websites based off of content.

[00:06:24] Speaker 03:
But as I was saying, I think when I started to answer Judge Kelly's question,

[00:06:29] Speaker 03:
That is not a content-based characteristic because social speech can be on any conceivable topic.

[00:06:36] Speaker 03:
message or idea and the act applies the same way.

[00:06:40] Speaker 03:
In that way, it is very much like the Reagan case where, yes, you maybe do have to look at the site or the platform to determine whether it has this functional capability to allow peer-to-peer or social speech.

[00:06:56] Speaker 03:
But beyond that, there needs to be no sort of parsing out to determine what types of things are discussed.

[00:07:03] Speaker 03:
So that should satisfy the definition of

[00:07:07] Speaker 03:
satisfies content neutrality, excuse me.

[00:07:09] Speaker 03:
NetChoice is also on appeal argued that the act is not content neutral because one of the other elements of the definition is that it regulates sites that display a list of users with whom the account holders share a connection with the system.

[00:07:25] Speaker 03:
It's that for the same reason as the interact socially language is also a content neutral functional

[00:07:34] Speaker 03:
qualifier within the statute that you look to see, does the platform have this feature enabled?

[00:07:41] Speaker 03:
And if so, there need be no further assessment of that.

[00:07:45] Speaker 03:
It, again, is very much like looking at the signs in Regan to determine whether they are on or off premises.

[00:07:52] Speaker 01:
And then the third- Just pause, hit pause button and explain that a little more.

[00:07:57] Speaker 01:
What is it that they're claiming is content neutral in that situation and why is it not?

[00:08:04] Speaker 03:
Right.

[00:08:04] Speaker 03:
And so one of the elements of the definition is that it applies to a site.

[00:08:09] Speaker 03:
Well, under the definition, a platform must meet all five of these structural criteria in order to be a covered entity under the Act.

[00:08:18] Speaker 03:
One of those is the interact socially element that the district court focused on.

[00:08:23] Speaker 03:
NetChoice on appeal has then also looked at a separate element within that definition, which is whether it displays a list of users within the site with whom the with whom the account holder shares a connection.

[00:08:37] Speaker 03:
So just whether that list is displayed.

[00:08:39] Speaker 03:
So we're using social media parlance like a

[00:08:43] Speaker 03:
your friend list is maybe a more colloquial way to explain that.

[00:08:50] Speaker 01:
And it does not display your friend list?

[00:08:53] Speaker 03:
If the Act does not have the feature to display that list of connected accounts, then it does not meet the definition of social media within the Act.

[00:09:04] Speaker 03:
So it looks at whether that functional capability enabled to display a list of users, but it doesn't look beyond that, or a list of connected users for the content of that list.

[00:09:18] Speaker 01:
And if the entity involved does display a list of connected social users, that is one criterion under which it falls under the Act, right?

[00:09:30] Speaker 03:
Yes, if it satisfies, yes, that.

[00:09:33] Speaker 03:
that goes against whether or not the definition covers the entity at all as separate from the issue your honor was asking about earlier as far as the default privacy settings.

[00:09:46] Speaker 01:
Correct, but if I'm understanding correctly, they're saying that the fact that that is an element of content-based activity that the act would target

[00:09:59] Speaker 01:
entities that display the list of connected users.

[00:10:03] Speaker 01:
Is that right?

[00:10:05] Speaker 03:
Yes, they're arguing that the definitions or identification as that is one of the structural features that an entity must satisfy that they argue that that does make it content based.

[00:10:16] Speaker 01:
OK.

[00:10:18] Speaker 01:
And you're saying it's not.

[00:10:19] Speaker 01:
Why?

[00:10:20] Speaker 03:
Why?

[00:10:20] Speaker 03:
I think this is very much like, again, the Reagan distinctions that it goes to whether or not this platform has that functional

[00:10:29] Speaker 03:
element or a structure to display a list of connected accounts.

[00:10:33] Speaker 03:
So you do have to read the content just like you had to read the sign in Regan to determine whether it was on or off site.

[00:10:40] Speaker 03:
But beyond that, looking to see if it was there, there is no content analysis that's required.

[00:10:46] Speaker 03:
It applies the same regardless of the nature of the types of

[00:10:52] Speaker 03:
of entities or persons on that list.

[00:10:55] Speaker 03:
There's no sort of topic, message, purpose discrimination there.

[00:10:59] Speaker 03:
It just doesn't display a list of connected accounts or not.

[00:11:02] Speaker 03:
And that's the only thing to look at.

[00:11:05] Speaker 03:
I think it is like the off premises, on premises distinction in Reagan.

[00:11:11] Speaker 01:
But it's a list of accounts of people.

[00:11:13] Speaker 01:
I mean, off premises, on premises, it strikes me as it could be viewed as a distinction with the difference between whether this particular entity displays a list of people who are socially connected.

[00:11:29] Speaker 01:
I mean, why isn't there some content overlay to that?

[00:11:33] Speaker 03:
The list isn't necessarily limited to people.

[00:11:35] Speaker 03:
I mean, it could be anything that any person or entity that is set up to be another account holder.

[00:11:41] Speaker 03:
It looks to whether or not the site allows them to be connected within the site and then displays a list of their connections.

[00:11:50] Speaker 03:
It does not reflect any sort of content discrimination as far as message topic or idea.

[00:11:58] Speaker 03:
It simply looks to whether or not there's a function enabled of does it allow

[00:12:02] Speaker 03:
of display of a list or not?

[00:12:05] Speaker 01:
Well, my question did focus on people.

[00:12:10] Speaker 01:
And as it relates to people, what I'm saying is why isn't there some content dimension associated with whether you are displaying a list of people who are my friends or not?

[00:12:21] Speaker 01:
I mean, why isn't there a content dimension to that?

[00:12:24] Speaker 01:
Because you're regulating whether that entity can do that or not.

[00:12:29] Speaker 03:
Right.

[00:12:30] Speaker 03:
It applies to an entity that does have that function enabled, whether or not, and it says whether they're connected within the system.

[00:12:37] Speaker 03:
So, I don't think it's necessarily limited to friends.

[00:12:40] Speaker 03:
It's whether or not they share a connection within.

[00:12:43] Speaker 01:
Okay.

[00:12:43] Speaker 01:
Well, they're connected within the system.

[00:12:45] Speaker 01:
Okay.

[00:12:46] Speaker 01:
I know I'm slow here, but help me to understand the point.

[00:12:51] Speaker 01:
And the point is, they're connected within the system.

[00:12:54] Speaker 01:
They could be people, they could be entities, but the point is, why isn't there a content overlay that you're trying to regulate?

[00:13:01] Speaker 01:
Because that particular entity chooses to display those people or entities with which I am connected.

[00:13:11] Speaker 01:
So give me the answer, the slow version, for why that's not a problem, okay?

[00:13:16] Speaker 03:
Well, I think, again, because it goes to whether or not just that functional capability is enabled.

[00:13:21] Speaker 03:
It's not about discriminating between different subjects or messages or treating content differently.

[00:13:28] Speaker 01:
It's just about, does the app structure to allow this?

[00:13:33] Speaker 01:
That's not necessarily binary.

[00:13:37] Speaker 01:
I mean, the idea that, oh, it's functional or it's content-based, those aren't necessarily binary.

[00:13:42] Speaker 01:
I mean, you could have a situation where you choose to functionally have, you know, somebody may choose to display certain content, and you say, functionally, I'm going to capture within my system any entity that displays certain content.

[00:13:55] Speaker 01:
So those two things aren't binary.

[00:13:56] Speaker 01:
binary.

[00:13:57] Speaker 01:
There's a situation where you could have functional structures in place that actually capture content.

[00:14:04] Speaker 01:
So what I'm trying to ask you is why isn't this one of them?

[00:14:10] Speaker 03:
That's true.

[00:14:10] Speaker 03:
A function could be discriminatory based off of what Reagan said, but here

[00:14:17] Speaker 03:
It is not based off of the message or topic discussed.

[00:14:21] Speaker 03:
It only is about, does the act have the functional structure to enable the display of this list?

[00:14:29] Speaker 03:
It's not about any sort of discriminatory treatment based off of topic or message.

[00:14:35] Speaker 03:
It just looks to what functional criteria and structural criteria does a site have.

[00:14:40] Speaker 03:
With that, I'd like to reserve my remaining time for rebuttal, if that's all right.

[00:14:46] Speaker 01:
Yes.

[00:14:51] Speaker 01:
Council.

[00:14:52] Speaker 00:
May it please the court, Scott Keller for NetChoice.

[00:14:56] Speaker 00:
Utah's social media law violates the First Amendment in at least five ways.

[00:15:00] Speaker 00:
First, this is a content-based restriction on billions of posts of fully protected speech.

[00:15:06] Speaker 00:
Second, the parental consent requirement violates the Supreme Court's holding in Brown.

[00:15:11] Speaker 00:
Third, the age assurance provision imposes a barrier on every Utah citizen, including adults, to access these billions of posts of fully protected speech.

[00:15:21] Speaker 00:
That violates the Supreme Court's free speech coalition decision.

[00:15:24] Speaker 00:
Fourth, the notifications ban is a doubly content-based speech restriction.

[00:15:30] Speaker 00:
And fifth, the display prohibitions, banning autoplay and seamless pagination, violate Moody, which recognized the First Amendment protects websites' decisions about how to display speech.

[00:15:41] Speaker 00:
Let me start with our argument of why this is a content-based speech restriction.

[00:15:46] Speaker 00:
And Chief Judge Holmes, I think you're exactly right.

[00:15:48] Speaker 01:
Before you agree with me, Mr. Keller, it strikes me that

[00:15:54] Speaker 01:
What brings us here on appeal is a much more limited issue than these five things that you're articulating.

[00:16:01] Speaker 01:
I mean, those are specific provisions within the act, as I understand it.

[00:16:05] Speaker 01:
And the hard work of deciding whether specific provisions in the act are content neutral or not is not necessarily what we're here to talk about now.

[00:16:14] Speaker 01:
And you can correct me clearly when I finish this statement, but as I understood it, the district court basically said that the definition of social media company

[00:16:24] Speaker 01:
is a definition that infects the entire act with content, you know, in an impermissibly content-based way.

[00:16:34] Speaker 01:
And therefore, and what the state of Utah says is no, no, no, no, no, that's not true.

[00:16:40] Speaker 01:
And so now we're on appeal dealing with that one sort of limited question.

[00:16:44] Speaker 01:
And let's assume, I'm not saying it's going to be the case, but let's assume that Utah prevails

[00:16:51] Speaker 01:
Well, you will be able to argue all the rest of this stuff in the district court at provision by provision.

[00:16:59] Speaker 01:
Then at least that's my conception of what we're doing here.

[00:17:03] Speaker 01:
Explain to me why that's wrong.

[00:17:06] Speaker 00:
Yeah, I don't think that that is the only thing that district court held here was, hey, this is content-based.

[00:17:12] Speaker 00:
I'm done.

[00:17:13] Speaker 00:
The district court had to apply heightened First Amendment scrutiny.

[00:17:16] Speaker 00:
And yes, it did apply strict scrutiny.

[00:17:18] Speaker 00:
And the state concedes here, if strict scrutiny applies, we win.

[00:17:22] Speaker 00:
And so we have joined argument here with the state on, we believe these provisions

[00:17:27] Speaker 00:
fail even intermediate scrutiny for many of the same reasons that the district court articulated under the strict scrutiny analysis.

[00:17:33] Speaker 01:
I mean, let me hit the pause button for a second.

[00:17:37] Speaker 01:
Yes, the court did apply the strict scrutiny and condemn the act to

[00:17:44] Speaker 01:
in that way to being unconstitutional.

[00:17:47] Speaker 01:
But I guess what I'm getting at is one decisional path that I see being invoked by Utah is simply that threshold determination, that that definitional structure was content-based, which therefore infused the entire statute as being unconstitutional on when the court applies strict scrutiny,

[00:18:10] Speaker 01:
that that threshold determination was wrong.

[00:18:14] Speaker 01:
And then the question would be, as I understand it, should we engage on intermediate scrutiny here?

[00:18:23] Speaker 01:
So I could see that there could be two decisional things to do here.

[00:18:28] Speaker 01:
But what I'm trying to get at is that isn't necessarily what we have to decide.

[00:18:34] Speaker 01:
I'll stop there.

[00:18:36] Speaker 00:
Please go ahead.

[00:18:37] Speaker 00:
Judge, first of all, we do believe that this is content-based, and I'm happy to get into that.

[00:18:40] Speaker 00:
But even if you assume that we're wrong, both sides have briefed up whether these provisions fail or satisfy intermediate scrutiny.

[00:18:49] Speaker 00:
For instance, I don't know how the state can get around the holding of Brown, that the state lacks, quote, power to prevent children from hearing or saying anything without their parents' prior consent, unquote.

[00:19:00] Speaker 00:
And I realize that the district court here rightly found strict scrutiny applied because it was a content-based law.

[00:19:05] Speaker 00:
But that's not the only provision of Brown that we rely on.

[00:19:08] Speaker 00:
The district court's heightened scrutiny analysis repeatedly relies on Brown to show why this law is both wildly under-inclusive, wildly over-inclusive, and also the fact that these websites provide parental tools, whether they're at the device level, the router level, the website level, the application level,

[00:19:27] Speaker 00:
Also, this law sweeps in.

[00:19:29] Speaker 01:
Could I stop for a quick second?

[00:19:32] Speaker 01:
I understand the virtues of efficiency.

[00:19:36] Speaker 01:
And it would be nice to wrap this thing up.

[00:19:40] Speaker 01:
But I mean, Judge Shelby is a smart guy.

[00:19:43] Speaker 01:
And why not, if we were to say Utah should prevail, why shouldn't we let Judge Shelby deal with these issues of intermediate scrutiny in the first instance?

[00:19:53] Speaker 01:
And maybe you'll win down there on everything.

[00:19:55] Speaker 01:
I mean, why not?

[00:19:56] Speaker 01:
let it play out that way?

[00:19:58] Speaker 00:
Well, a few reasons.

[00:19:59] Speaker 00:
First of all, we do believe this is content-based, but we also don't want to be in a position where we're having to run back and immediately go do preliminary injunctive proceedings anew.

[00:20:07] Speaker 00:
But let me tackle the content-based.

[00:20:09] Speaker 04:
Can I interrupt just really quickly on that issue of sending it back to Judge Shelby, if we were to go that route?

[00:20:15] Speaker 04:
Did you read Judge Shelby's opinion in, I don't remember the footnote, maybe 26, as actually perhaps making a ruling on the

[00:20:27] Speaker 04:
on the intermediate scrutiny, the court basically said that nothing was given to the court from Utah regarding what supported the legislation in the first place, essentially, and that this wouldn't even meet intermediate scrutiny.

[00:20:48] Speaker 04:
How did you interpret that footnote?

[00:20:51] Speaker 00:
Yeah, I think there are all sorts of parts of this opinion, including that, where all of those holdings were made.

[00:20:57] Speaker 00:
And this is why when the court says... He didn't say it was an alternative holding.

[00:21:02] Speaker 04:
It just was sort of a bit of a stray comment.

[00:21:05] Speaker 04:
I wondered what your interpretation was.

[00:21:07] Speaker 00:
Yeah, I mean, and the same goes to age assurance that, you know, this burdens all adults, not just minors.

[00:21:13] Speaker 00:
And the district court rightfully said this sweeps in much more, it burdens substantially more speech than would be necessary.

[00:21:20] Speaker 00:
And, you know, strict scrutiny and intermediate scrutiny are both

[00:21:22] Speaker 00:
heightened First Amendment scrutiny with teeth.

[00:21:25] Speaker 00:
As this Court has said, even under intermediate scrutiny, you need a close fit between the ends and the means.

[00:21:29] Speaker 00:
It still requires narrow tailoring.

[00:21:31] Speaker 00:
Regulating speech is supposed to be the last resort, not the first resort.

[00:21:35] Speaker 00:
Now I do think the easiest way that this Court can resolve all of this right now though is by finding that this is a content-based restriction of speech.

[00:21:43] Speaker 00:
I think it's at least for two reasons.

[00:21:46] Speaker 00:
First,

[00:21:47] Speaker 00:
The coverage definition sweeps in websites that allow users to interact socially, not just interact, but interact socially.

[00:21:55] Speaker 00:
And second, whether a website is covered depends on do they provide a list of other account holders that are connections?

[00:22:04] Speaker 00:
And Judge Holmes, I do believe that this is absolutely content-based.

[00:22:07] Speaker 00:
You have to go look at the website and if the website lists those connected users, it's covered.

[00:22:13] Speaker 00:
If it doesn't, then it doesn't satisfy that it wouldn't be covered.

[00:22:17] Speaker 01:
Yeah, but it doesn't tell you anything about, it doesn't have any characteristic associated with the users.

[00:22:22] Speaker 01:
It doesn't, they could be any kind of users having anything to, they could be vendors, they could be individuals, it could be friends.

[00:22:29] Speaker 01:
So why is it necessarily content-based just because it instrumentally addresses users?

[00:22:38] Speaker 00:
Well, I think you're still examining what is the substantive content, the speech that is on the website.

[00:22:43] Speaker 00:
Is there a list of users or not?

[00:22:45] Speaker 00:
But also, I think all of this goes to

[00:22:48] Speaker 00:
Utah was essentially trying to exempt professional speech.

[00:22:51] Speaker 00:
And we also know this from the exemptions.

[00:22:52] Speaker 00:
This law exempts email.

[00:22:54] Speaker 00:
It exempts cloud storage.

[00:22:55] Speaker 00:
It exempts document collaboration.

[00:22:58] Speaker 00:
All of those would be professional speech.

[00:22:59] Speaker 00:
And I think the Western District of Texas and the Southern District of Ohio and the CCIA versus PACS and the Yost decisions did get it right in finding that these are content-based restrictions.

[00:23:11] Speaker 01:
But let me hit the pause button for a second.

[00:23:13] Speaker 01:
I mean, on this notion of restricting professional speech,

[00:23:16] Speaker 01:
I take it that the Facebooks of this world would be captured by this provision, by this act?

[00:23:24] Speaker 01:
Yes.

[00:23:25] Speaker 01:
A lot of people do business on Facebook.

[00:23:28] Speaker 01:
When I'm trying to focus on whether this thing is content-based, what I'm thinking about is that there are all sorts of content on the internet

[00:23:40] Speaker 01:
And there's all sorts of content that would be within the context of Facebook.

[00:23:45] Speaker 01:
Let's just use that example.

[00:23:46] Speaker 01:
I mean, where is the content restriction when you could have the every flower blooming on the internet and you can have every flower blooming on Facebook?

[00:23:57] Speaker 01:
I mean, where's the content discrimination there, including the business part?

[00:24:02] Speaker 01:
Because I mean, I know there's some entities, that's the only place they do business is on things like Facebook.

[00:24:07] Speaker 01:
So where's the discrimination there?

[00:24:11] Speaker 00:
Well, I think it would be the other types of services that would have these same, you know, online server, whether it's autoplay and pagination.

[00:24:19] Speaker 00:
We've given examples of how this is over inclusive and under inclusive that, you know, it covers dream with, which is just about creative writing, even though they don't use autoplay and seamless pagination.

[00:24:28] Speaker 00:
But then

[00:24:29] Speaker 00:
Services like ESPN and Disney Plus and Hulu and Spotify and the New York Times are not covered even though they would use that.

[00:24:36] Speaker 00:
Also, I think the district court was completely correct here that the state hasn't even tried to show a direct causal link in the harm that they purport.

[00:24:45] Speaker 01:
But I'm focusing on the definitional aspect now, the socially aspect, which I thought we were talking about, and the notion of whether that's sorted by content.

[00:24:54] Speaker 01:
And what I was trying to get at is you can talk about anything socially, one.

[00:25:00] Speaker 01:
Two, that the entities that are captured within and without this act

[00:25:07] Speaker 01:
both appear to be engaging in the same sort of speech.

[00:25:10] Speaker 01:
I mean, so in other words, you know, the notion does it excludes the internet?

[00:25:14] Speaker 01:
Well, the internet is doing all sorts of content in this what's covered.

[00:25:19] Speaker 01:
They're doing all sorts of content.

[00:25:21] Speaker 01:
They could talk politics, they could talk sports, they could talk business within the scope of the act, too.

[00:25:26] Speaker 01:
So why is it targeting anything?

[00:25:29] Speaker 00:
Well, so I think, first of all,

[00:25:32] Speaker 00:
It's not just interaction, it's interact socially.

[00:25:35] Speaker 00:
And I think the word socially has to have some meaning in this statute or else it would be superfluous.

[00:25:42] Speaker 01:
Now we submit- Tell me what meaning it has that distinguishes it between, let's say I leave a comment on the New York Times Facebook page or I leave a comment on ABC News, I know would have a Facebook page.

[00:25:57] Speaker 01:
And I leave a comment on there.

[00:25:59] Speaker 01:
I'm angry about blah, blah, blah.

[00:26:01] Speaker 01:
I mean, I'm interacting.

[00:26:02] Speaker 01:
with ABC, right?

[00:26:05] Speaker 00:
Well, I believe it's interacting with each other, as in the other users on the website.

[00:26:11] Speaker 00:
But look, I think if there's any vagueness about this, I don't think you can hold that against the websites.

[00:26:16] Speaker 00:
The state has to draw a law with sufficient specificity.

[00:26:19] Speaker 00:
And so it's not just interaction.

[00:26:21] Speaker 00:
But also, too, Judge Holmes, even if we go the other direction and say, well, there's a bunch of other websites that allow the same thing, but those aren't covered, I think that's just a huge tailoring flaw for this law on the state.

[00:26:32] Speaker 00:
And I know that doesn't necessarily go to strict scrutiny versus intermediate scrutiny.

[00:26:35] Speaker 00:
But it does go to height in First Amendment scrutiny under whatever standard applies.

[00:26:39] Speaker 00:
And I think that's why the Supreme Court in Packingham and in Moody said those laws and those provisions challenged, they sustained those challenges even under intermediate scrutiny, saying we didn't have to get to strict scrutiny because the laws wouldn't survive even the lower form of intermediate scrutiny.

[00:26:56] Speaker 00:
And we know from F.E.C.

[00:26:58] Speaker 01:
And that goes to whether you win

[00:27:00] Speaker 01:
if even under a circumstance where Judge Shelby was wrong initially.

[00:27:06] Speaker 01:
And that's the threshold question, it seems to me, that we're called upon to decide is whether this definitional content-based dissemination was wrong, right?

[00:27:20] Speaker 00:
I do think it's content-based because of the distinction between professional speech or news or entertainment.

[00:27:25] Speaker 00:
If you disagree on that, though, I would also submit that the Supreme Court has made clear this is the city of Boston.

[00:27:30] Speaker 01:
I'm the guy asking questions.

[00:27:32] Speaker 01:
I'm not agreeing or disagreeing with anything right now.

[00:27:34] Speaker 01:
But go ahead, please.

[00:27:37] Speaker 04:
Can I interrupt just to make sure?

[00:27:39] Speaker 04:
Is there anything besides what you just said, which is that it distinguishes based on not just interacting, but interacting socially?

[00:27:47] Speaker 04:
Is there anything besides that that really

[00:27:51] Speaker 04:
makes or breaks your argument.

[00:27:53] Speaker 00:
For that it's a content-based restriction.

[00:27:56] Speaker 00:
The second would be the displaying the list.

[00:27:59] Speaker 00:
The third would be reading this all in context.

[00:28:02] Speaker 00:
I think the exemptions of email, cloud, and document collaboration, I think that bolsters our argument that what interacts socially is trying to get at is making a distinction of professional speech versus social interaction.

[00:28:13] Speaker 04:
And yet professional speech can also be, you know,

[00:28:20] Speaker 04:
I mean you can make professional speech on any of these social media websites, right?

[00:28:30] Speaker 00:
I think the best way to read interact socially is that's what the state and the law was trying to get at.

[00:28:34] Speaker 00:
And we know this isn't just interaction.

[00:28:36] Speaker 00:
I mean, there are all sorts of ways, of course, to interact.

[00:28:38] Speaker 00:
This is interact socially.

[00:28:40] Speaker 00:
But even if your honors disagree with everything I just said, at pages 37 to 50 of our brief, we have given all of the alternative basis to affirm on the individual provisions.

[00:28:50] Speaker 00:
The parental consent provision squarely foreclosed by Brown.

[00:28:54] Speaker 00:
The age assurance provision targets billions of posts of fully protected speech.

[00:28:58] Speaker 00:
The notifications provision says that websites can't engage in their own speech.

[00:29:02] Speaker 00:
The autoplay and seamless pagination bans directly infringed editorial judgments of how to display speech.

[00:29:09] Speaker 00:
And I think the district court was correct here.

[00:29:11] Speaker 00:
This isn't like a moody situation where there's a dispute among the parties over what is covered by this law.

[00:29:16] Speaker 00:
And the defendant concedes that at least intermediate scrutiny applies.

[00:29:20] Speaker 00:
These laws are going to raise the same First Amendment issues in every application.

[00:29:24] Speaker 00:
And this is a law that is doubly narrow in that it targets social media companies operating social media services.

[00:29:31] Speaker 00:
So this is not like Moody, where the court said, well, we don't know about direct messaging.

[00:29:35] Speaker 00:
We don't know about ride sharing.

[00:29:37] Speaker 00:
We don't know about payment services or online marketplaces or email.

[00:29:41] Speaker 00:
All of those kinds of websites that Moody flagged could have a different First Amendment analysis when you're talking about compelling more speech dissemination.

[00:29:48] Speaker 00:
None of those are covered by this statute.

[00:29:51] Speaker 00:
So there's no moody facial challenge problem.

[00:29:53] Speaker 00:
And this law is unconstitutional in various ways.

[00:29:57] Speaker 00:
I see my time has expired.

[00:29:59] Speaker 00:
If there are any other questions.

[00:30:01] Speaker 00:
Thank you, Your Honor.

[00:30:03] Speaker 01:
Thank you, Counsel.

[00:30:05] Speaker 01:
You have a little bit of time left, I think, Ms.

[00:30:06] Speaker 01:
Middleton.

[00:30:08] Speaker 03:
Yes.

[00:30:09] Speaker 03:
Just responding to NetChoice's argument that the act treats professional speech differently, there's simply no basis in the act for that.

[00:30:31] Speaker 03:
Email, cloud storage are very structurally different sites than a social media site.

[00:30:36] Speaker 03:
And communications on either of them could be about anything.

[00:30:40] Speaker 03:
So that's not a content-based.

[00:30:41] Speaker 03:
And as far as Brown goes, that's a case applying strict scrutiny and a content-based regulation.

[00:30:46] Speaker 03:
For those reasons, the state would ask the court to reverse the district courts holding that it's content-based and its application of strict scrutiny and remand.

[00:30:56] Speaker 01:
All right.

[00:30:57] Speaker 01:
Thank you, counsel, for your fine argument.

[00:30:59] Speaker 01:
Case is submitted.