> But then why is anybody confused why the Justices are pointing out that Section 230(a)(1) doesn't have anything to say about first party speech?

I'm not confused, but I can guess why someone would be. There's historical context to the oral arguments of the Texas and Florida "anti-censorship" laws. Google is a member of NetChoice. In Gonzalez v. Google LLC [1], Google argued in the lower courts that Section 230(c)(1) made Google immune to liability for YouTube's automated recommendations of terrorist content because the motivation for the liability lay in the content of the user-uploaded videos i.e. third-party speech. The Supreme Court court didn't involve Section 230 in the ruling, but did discuss Google's Section 230 argument in the oral arguments.

The Texas and Florida laws in the case would not make platforms liable for third-party speech. But in the oral arguments for the Texas and Florida cases (Moody v. NetChoice and NetChoice v. Paxton), Justices Alito, Thomas, and Gorsuch mistakenly thought that Google's past argument about liability for users' speech (not the platform's speech) contradicted NetChoice's current argument about the First Amendment right to moderate (the platform's speech) and additionally the section 230(c)(2)(A) right to remove anything the site considers "objectionable". For example, here's Justice Alito in NetChoice v. Paxton [2]:

> Either it's your message or it's not your message. I don't understand how it can be both. It's your -- it's your message when you want to escape state regulation, but it's not your message when you want to escape liability under state tort law.

Justice Alito was conflating "message" meaning the content of the posts (authored by the users) and "message" meaning the moderation actions of the social media site (performed by the company, modifying the expression of what kind of website the website is). I wrote more about the distinction in a different comment ( https://news.ycombinator.com/item?id=39576076 ); that comment pertains to both the Justice's confusion and the main topic of the article.

The main topic of the featured article is not the Florida and Texas court cases. The article is about the misunderstandings that Steven Brill has about what Section 230 does, who Section 230 applies to, and Section 230 is necessary in the context of liability for harmful user posts.

> The First Amendment has limited applicability to commercial activity. For example, the law can prohibit phone companies from denying phone service to customers on the basis of their political views, even if the phone company disagrees with them.

The Florida and Texas laws have to pass strict scrutiny [3]. Intermediate scrutiny doesn't apply [4], and the laws would fail intermediate scrutiny anyway:

> Intermediate scrutiny applies to regulation that does not directly target speech but has a substantial impact on a particular message. It applies to time, place, and manner restrictions on speech, for example, with the additional requirement of "adequate alternative channels of communication."

...

> Intermediate scrutiny also applies to regulation of commercial speech, as long as the state interests in regulating relate to fair bargaining. Regulations for other reasons, such as protection of children, are subject to strict scrutiny.

Banning all post removals is not a "time, place, and manner" restriction. It does not relate to "fair bargaining" either. Here is strict scrutiny [3]:

> In U.S. constitutional law, when a law infringes upon a fundamental constitutional right, the court may apply the strict scrutiny standard. Strict scrutiny holds the challenged law as presumptively invalid unless the government can demonstrate that the law or regulation is necessary to achieve a "compelling state interest". The government must also demonstrate that the law is "narrowly tailored" to achieve that compelling purpose, and that it uses the "least restrictive means" to achieve that purpose. Failure to meet this standard will result in striking the law as unconstitutional.

The least restrictive means (least restrictive of moderation rights) for the government to prevent censorship is not forcing one platform to allow all speech, but waiting for multiple websites with different speech rules to show up (Truth Social, AT Protocol instances, ActivityPub instances, and personal websites) so that the sum of all platforms will allow all speech.

> The key idea is the heading of that section, which says "Civil liability", implying that it doesn't apply to government-imposed penalties.

How so? Courts impose penalties. That, and the bills are enforced by lawsuits, which are civil.

[1] https://en.wikipedia.org/wiki/Gonzalez_v._Google_LLC

[2] https://www.supremecourt.gov/oral_arguments/argument_transcr...

[3] https://en.wikipedia.org/wiki/Strict_scrutiny

[4] https://en.wikipedia.org/wiki/Intermediate_scrutiny#Free_spe...