The Supreme Court heard oral arguments in late February on the fate of conservative thought in mainstream social media. It doesn’t look good for our side.
The Court expressed skepticism at best about Florida and Texas laws (Moody v. NetChoice, NetChoice v. Paxton) enacted in response to social media platforms censoring conservative views after January 6. The state laws restrict social media companies canceling user-generated content and require individualized explanations for editorial choices. Media trade groups challenged the laws, with the Eleventh Circuit blocking Florida’s enforcement while the U.S. Court of Appeals for the 5th Circuit upheld the Texas law. The Texas law is not currently in effect, however, because the Supreme Court barred the state from implementing it with the challenge ongoing.
During the oral arguments, the justices suggested the laws may violate the First Amendment by infringing on companies’ editorial decisions.
The deeper questions are whether or not social media are publishers or conveyors (common carriers), and whether or not they are bound by the First Amendment not to censor content. The first issue tries to draw out the question of whether, say, Facebook (or Google, or X, but we’ll use “Facebook” as a proxy) are publishers in the same sense that The American Conservative magazine and website are.
A publisher by definition has a First Amendment right to select which authors to include or exclude and what topics to write about. It is literally what a publisher does. A conveyance is closer to the phone company; they provide the means of communication fully independent of what is being communicated. The phone company, for example, couldn’t care less whether you are talking to mom about Aunt Sally’s apple pie recipe or organizing to burn the flag to protest an over-emphasis on mom and apple pie.
More issues to resolve: the First Amendment prevents government from suppressing speech and has never been applied to private companies however large and dominant in the marketplace, and Section 230 of the Communications Decency Act, which says Facebook and others are not publishers. (Technically, the Act shields tech companies from liability for content published by others, i.e., Facebook is not liable for posts from crazy people.)
Nonetheless, Florida and Texas passed laws prohibiting social media from editorially eliminating (conservative) thought. For example, the Florida law bars social media platforms from banning candidates for political office, as well as from limiting the exposure of those candidates’ posts. The Texas law prohibits companies from removing content based on users’ viewpoints. The laws also would have forced the platforms to explain each decision to delete, shadow ban or otherwise block a specific example of thought.
The social media giants claim such regulation violates their First Amendment rights. They claim the Florida and Texas laws are unconstitutional if they apply at all, independent of who is or is not a “publisher.” The states maintain their laws do not “implicate the First Amendment at all, because they simply require social media platforms to host speech [a conveyance], which is not itself speech but instead conduct that states may regulate to protect the public.” The business model for these platforms, the states say, hinges on having billions of other people post their speech on the platforms – something very different from, say, a newspaper that creates its own content and publishes it.
Associate Justice Elena Kagan was one of several justices to question the constitutionality of the Florida and Texas laws, asking, “Isn’t this a classic First Amendment violation [of Facebook’s rights]?” Associate Justice Brett Kavanaugh also appeared unconvinced. He noted that the First Amendment protected against the suppression of speech “by the government” not private companies and that the Supreme Court had a history of cases “which emphasize editorial control [such as Facebook’s] as being fundamentally protected by the First Amendment.” Chief Justice John Roberts echoed Kavanaugh’s point.
Associate Justice Amy Coney Barrett said that “it all turns on” whether the social media platforms are exercising “editorial control,” acting as a publisher, when they remove or deprioritize content. Justices also voiced concern that the Florida law was quite broad, potentially applying not only to large social media platforms but also to other sites like Gmail, Uber, and Etsy. The Texas law, on the other hand, specifically excludes standard web sites and tools such as Gmail.
The justices pressed for a discussion of the interaction between the Texas law and Section 230 of the Communications Decency Act. Associate Justice Neil Gorsuch stated there is a tension between the idea a tech company can’t be held liable for its users’ speech and the idea that moderating that content is the tech company’s speech. Is it speech for purposes of the First Amendment, he asked, but not for purposes of Section 230?
“Just as Florida may not tell the New York Times what opinion pieces to publish or Fox News what interviews to air, it may not tell Facebook or YouTube what content to disseminate,” the tech companies emphasize in their argument. Is content moderation just a euphemism for censorship? Associate Justice Samuel Alito pressed tech companies to define the term “content moderation.”
“If the government’s doing it, then content moderation might be a euphemism for censorship,” said a company representative. “If a private party is doing it, content moderation is a euphemism for editorial discretion.”
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The Biden administration filed an amicus brief against Florida and Texas supporting the tech groups.
A decision by the Supreme Court is expected this summer. The Court is likely to prevent Florida and Texas from implementing laws restricting social media from removing conservative thought or controversial posts, even as they express concern about the power platforms wield over public discourse.
That does not end the debate, however. The interplay between the First Amendment and Facebook is the most significant challenge to free speech in our lifetimes. Pretending a corporation with the reach to influence elections is just another place that sells stuff is to pretend the role of debate in a free society is outdated.